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No. 09-530

 

In the Supreme Court of the United States

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, ET AL., PETITIONERS

v.

ROBERT M. NELSON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
NICOLE A. SAHARSKY
Assistant to the Solicitor
General
MARK B. STERN
MELISSA N. PATTERSON
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217


APPENDIX A

 

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 07-56424

ROBERT M. NELSON; WILLIAM BRUCE BANERDT; 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

v.

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

 

 

 

 

 

 

 

Argued and Submitted: Dec. 5, 2007

Filed: June 20, 2008

 

 

 

 

Before: DAVID R. THOMPSON and KIM MCLANE WARD LAW, Circuit Judges, and EDWARD C. REED, JR.,1 Dis trict Judge.

ORDER

Our prior opinion filed on January 11, 2008, and re ported 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 Proce dure.

IT IS SO ORDERED.

5. OPINION

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 Aero nautics and Space Administration (_NASA_) and the California Institute of Technology (_Caltech_). Appel lants sued NASA, Caltech, and the Department of Com merce (collectively _Appellees_), challenging NASA's re cently adopted requirement that _low risk_ contract em ployees like themselves submit to in-depth background investigations. The district court denied Appellants' re quest for a preliminary injunction, finding they were un likely to succeed on the merits and unable to demon strate irreparable harm. Because Appellants raise seri ous legal and constitutional questions and because the balance of hardships tips sharply in their favor, we re verse and remand.

6. I

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 proce dures requiring _low risk_ JPL personnel to yield to broad background investigations as a condition of re taining access to JPL's facilities. NASA's new policy re quires that every JPL employee undergo a National Agency Check with Inquiries (NACI), the same back ground investigation required of government civil ser vice employees, before he or she can obtain an identifica tion 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, including residential, edu cational, 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 treat ment or counseling received. This information is then checked against four government databases: (1) Secu rity/Suitability Investigations Index; (2) the Defense Clearance and Investigation Index; (3) the FBI Name Check; and (4) the FBI National Criminal History Fin gerprint 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, residen tial management agents, employers, criminal justice ag encies, retail business establishments, or other sources of information._ The information sought _may include, but is not limited to, [the applicant's] academic, residen tial, achievement, performance, attendance, disciplinary, employment history, and criminal history record infor mation._2 The record is vague as to the exact extent to and manner in which the government will seek this in formation, but it is undisputed that each of the appli cants' 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 trustwor thiness_ or has _any adverse information about [the ap plicant's] employment, residence, or activities_ concern ing _violations of law,_ _financial integrity,_ _abuse of al cohol 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 col lected, NASA and the federal Office of Personnel Man agement determine whether the employee is _suitable_ for continued access to NASA's facilities, though the exact mechanics of this suitability determination are in dispute.3

Since it was first created in 1958, NASA, like all oth er federal agencies, has conducted NACI investigations of its civil servant employees but not of its contract em ployees. Around the year 2000, however, NASA _deter mined that the incomplete screening of contractor em ployees posed a security vulnerability for the agency_ and began to consider requiring NACI investigations for contract employees as well. In November 2005, revi sions to NASA's Security Program Procedural Require ments imposed the same baseline NACI investigation for all employees, civil servant or contractor. These changes were not made applicable to JPL employees until January 29, 2007, when NASA modified its contract with Caltech to include the requirement. Caltech vigor ously opposed the change, but NASA invoked its con tractual right to unilaterally modify the contract and directed Caltech to comply immediately with the modifi cations. Caltech subsequently adopted a policy-not re quired 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 em ployees 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 Proce dure 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 inves tigations violate their constitutional right to informa tional privacy.

On September 24, 2007, Appellants moved for a pre liminary 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' re quest. It divided Appellants' claims into two catego ries-those challenging the SF 85 questionnaire itself and those challenging the grounds upon which an em ployee 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 Aeronau tics 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 inves tigation 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 conclud ed that the information sought by SF 85 and its waiver requirement raised serious privacy issues and ques tioned whether it was narrowly tailored to meet the gov ernment's legitimate interest in ascertaining the iden tity of its low-risk employees. Id. at 716. The panel fur ther found that _[t]he balance of hardships tips sharply in favor of [A]ppellants,_ who risk losing their jobs pen ding appeal, whereas there was no exigent reason for performing the NACI investigations during the few months pending appeal given that _it has been more than three years since the Presidential Directive [upon which the government relies] was issued._ Id. at 716.

7. II

To obtain preliminary injunctive relief, Appellants must demonstrate either _(1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in its favor._ Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir. 1999). The two prongs are not separate tests but rather _extremes of a single continuum,_ so _the greater the relative hardship to [the party seeking the preliminary injunction], the less probability of success must be shown._ Id. (internal quotation marks omitted).

Upon review of the merits of the district court's de nial of preliminary injunctive relief, we find ourselves in agreement with the motions panel. Appellants have demonstrated serious questions as to their informational privacy claim, and the balance of hardships tips sharply in their favor. We therefore conclude that the district court abused its discretion in denying Appellants' mo tion for a preliminary injunction, and we reverse and remand.

A. Standing and Ripeness

The district court found that the justiciability doc trines of ripeness and standing precluded consideration of Appellants' claims, except as they concerned the SF 85 questionnaire and associated waiver. We agree with the district court that Appellants' claims concerning the suitability determination are unripe and unfit for judi cial review; however, the district court misconstrued Ap pellants' informational privacy claim, viewing it as lim ited to the SF 85 questionnaire alone.

To enforce Article III's limitation of federal jurisdic tion to _cases and controversies,_ plaintiffs must demon strate both standing and ripeness. To demonstrate standing, a plaintiff _must have suffered an _injury in fact_-an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) actual or imminent, not conjectural or hypothetical._ Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) (internal citations and quota tion marks omitted). The ripeness doctrine similarly serves _to prevent the courts, through avoidance of pre mature adjudication, from entangling themselves in ab stract disagreements over administrative policies_ and requires assessing __both the fitness of the issues for judicial decision and the hardship to the parties of with holding court consideration.__ Ass'n of Am. Med. Colls. v. United States, 217 F.3d 770, 779-80 (9th Cir. 2000) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967)).

In analyzing justiciability, the district court dis tilled Appellants' claims into two basic arguments: (1) _that SF 85 is overly broad and intrusive considering the _low-risk_ nature of [appellants'] jobs at JPL_ and (2) _that JPL's internal policy, which lists various grounds upon which an employee can be determined un suitable for employment, is unconstitutional._ We agree that challenges to the suitability determination are un ripe because the record does not sufficiently establish how the government intends to determine _suitability_- accordingly, any claims are _strictly speculative._ We also agree that Appellants have standing to challenge the SF 85 questionnaire, and because _it is undisputed that if [Appellants] do not sign the SF 85 waiver by Oc tober 5, 2007,_ they will _be deemed to have voluntarily resigned,_ there exists a _concrete injury that is immi nent and not hypothetical_ and thus ripe for review.

However, the district court overlooked Appellants' challenges to the government investigation that will result from the SF 85 requirement that the applicant sign an _authorization for release of information._ On its face, this waiver authorizes the government to collect _any information . . . from schools, residential man agement agents, employers, criminal justice agencies, retail business establishments, or other sources of in formation_ _includ[ing], but . . . not limited to, . . . academic, residential, performance, attendance, disci plinary, employment history, and criminal history re cord information._ (emphasis added). It is uncontested that as a result of this authorization, the government Of fice of Personnel Management will send out _Investiga tive Request[s] for Personal Information,_ Form 42, to references, employers, and landlords. This form seeks highly personal information using an open-ended ques tioning technique, including asking for _any adverse information_ at all or any _additional information which . . . may have a bearing on this person's suitability for government employment._ Any harm that results from Form 42's dissemination and the information conse quently provided to the government will be concrete and immediate.

Because Federal Appellees freely admit that Form 42 will be used in NASA's background investigations, Appellants have standing to challenge Form 42's distri bution and solicitation of private information, and the issues raised in these challenges are ripe for review. The district court erred by excluding Form 42 claims from its analysis of Appellants' likelihood of success on the merits.

 

B. APA Claim

Appellants first claim that Federal Appellees viola ted the APA by imposing background investigations on contract employees without any basis in executive order or statute. The district court found that Congress gave NASA the authority to conduct such investigations in the Space Act of 1958, which provides:

The [NASA] Administrator shall establish such secu rity requirements, restrictions, and safeguards as he deems necessary in the interest of the national secu rity. The Administrator may arrange with the Direc tor of the Office of Personnel Management for the conduct of such security or other personnel investi gations of the Administration's officers, employees, and consultants, and its contractors and subcontrac tors and their officers and employees, actual or pro spective, as he deems appropriate. . . .

42 U.S.C. § 2455(a).

Appellants argue that the _security or other person nel investigations_ described in the second sentence of § 2455(a) are examples of the _security requirements, restrictions, and safeguards_ described in the first sen tence and therefore may only be established _as . . . deem[ed] necessary in the interest of the national secur ity._ They then argue that this limiting clause must be read in light of Cole v. Young, 351 U.S. 536, 76 S. Ct. 861, 100 L. Ed. 1396 (1956), where the Supreme Court interpreted a statute giving certain government officials the power to summarily dismiss employees _when deemed necessary in the interest of the national secur ity._ Id. at 538, 76 S. Ct. 861 (internal quotation marks omitted). In Cole, the Court found it clear _that _nation al security_ was not used in the Act in an all-inclusive sense, but was intended to refer only to the protection of _sensitive_ activities_ and therefore held that _an em ployee can be dismissed _in the interest of the national security_ under the Act only if he occupies a _sensitive_ position._ Id. at 551, 76 S. Ct. 861. Appellants claim that, by using identical limiting language in the Space Act so soon after Cole, Congress intended to authorize personnel investigations only of contractors in _sensi tive_ positions and not of the _low risk_ contractors at issue in this case.

We need not resolve whether the reference to the _interest of the national security_ in § 2455(a) should be interpreted in light of Cole, because we read this limit ing language to apply only to the _security require ments, restrictions, and safeguards_ described in the first sentence and not to the _personnel investigations_ described in the second sentence. The second sentence could plausibly be read as an example of the _security requirements, restrictions, and safeguards_ described in the first sentence, but the statute's legislative history strongly suggests that it was instead meant to be a sepa rate and distinct authorization of power. The Confer ence Report describes the two sentences separately and notes that the Senate version of the bill contained the second sentence but not the first. Conf. Rep. No. 2166 (1958), as reprinted in 1958 U.S.C.C.A.N. 3160, 3190, 3197-98. This suggests that § 2455(a) provides two dis tinct authorizations, the latter of which allows the NASA Administrator to arrange for _security and other per sonnel investigations_ of contractors _as he deems ap propriate,_ regardless of whether these investigations are _necessary in the interest of the national security._ Because the Space Act appears to grant NASA the stat utory authority to require the investigations here at is sue, we agree with the district court that Appellants are unlikely to succeed on the merits of their APA claim.4

C. Fourth Amendment Claim

We also agree with the district court's conclusion that Appellants are unlikely to succeed on their Fourth Amendment claims, because the government's actions are not likely to be deemed _searches_ within the mean ing of the Amendment. An action to uncover informa tion is generally considered a _search_ if the target of the search has a _reasonable expectation of privacy_ in the information being sought, a term of art meaning a _subjective expectation of privacy . . . that society is prepared to recognize as reasonable._ United States v. Diaz-Castaneda, 494 F.3d 1146, 1151 (9th Cir. 2007) (citing Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring)). One does not have a _reasonable expectation of privacy_ in one's information for Fourth Amendment purposes merely because that information is of a _private_ nature; instead, Fourth Amendment protection can evaporate in any of several ways. See, e.g., United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976) (holding that there is no reasonable expectation of pri vacy in bank records in part because the information was voluntarily disclosed to the bank). To succeed on their Fourth Amendment claim, therefore, Appellants must demonstrate that either the Form 42 inquiries sent to third parties or the SF 85 questionnaire itself violates a _reasonable expectation of privacy_ so as to be consid ered a _search_ within the meaning of the Amendment.

1. Form 42 Inquiries

_What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection,_ Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); however, information does not lose Fourth Amendment protection simply because it is conveyed to another party. For example, in Katz, FBI agents attached an electronic listening device to the out side of a public telephone booth and recorded the defen dant transmitting illegal betting information over the telephone. Id. at 348, 88 S. Ct. 507. Even though the booth's occupant had voluntarily conveyed the informa tion in the conversation to the party on the other end of the line, the Court found that he was _surely entitled to assume that the words he utters into the mouthpiece w[ould] not be broadcast to the world,_ so the covert surveillance was considered a search within the meaning of the Amendment. Id. at 352-53, 88 S. Ct. 507.

On the other hand, in United States v. White, the Supreme Court held that the electronic surveillance of a conversation between a defendant and a government informant did not constitute a _search_ for Fourth Amendment purposes. 401 U.S. 745, 754, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971) (plurality). The Court acknowl edged that, as in Katz, the speaker likely expected the content of the conversations to be kept private; however, it held as a bright-line rule that the Fourth Amendment _affords no protection to _a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrong doing will not reveal it.__ Id. at 749, 91 S. Ct. 1122 (quo ting Hoffa v. United States, 385 U.S. 293, 302, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966)). In United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976), hold ing that the government could subpoena private bank records without implicating the Fourth Amendment, the Court extended the bright-line rule to all information knowingly revealed to the government by third parties:

[T]he Fourth Amendment does not prohibit the ob taining 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 purpose and the confi dence placed in the third party will not be betrayed.

Id. at 443, 96 S. Ct. 1619.

In the challenged background investigations, the government will send written Form 42 inquiries to the applicant's acquaintances. Through these inquiries, the third parties may disclose highly personal information about the applicant. As in White and Miller, the appli cant presumably revealed this information to the third party with the understandable expectation that this in formation would be kept confidential. Nonetheless, these written inquiries appear to fit squarely under Miller's bright-line rule and therefore cannot be consid ered _searches_ under the Fourth Amendment.5

2. SF 85 Questionnaire

The SF 85 questionnaire required of the applicant is also unlikely to be considered a Fourth Amendment _search._ Requiring an individual to answer questions may lead to the forced disclosure of information that he or she reasonably expects to keep private. Historically, however, when _the objective is to obtain testimonial ra ther than physical evidence, the relevant constitutional amendment is not the Fourth but the Fifth._ Green awalt v. Ind. Dep't of Corr., 397 F.3d 587, 591 (7th Cir. 2005) (holding that a psychological examination required for continued government employment was not a search under the Fourth Amendment).

As Judge Posner notes in Greenawalt, direct ques tioning can potentially lead to a far greater invasion of privacy than many of the physical examinations that have in the past been considered Fourth Amendment _searches._ Id. at 589-90. Nonetheless, applying the Fourth Amendment to such questioning would force the courts to analyze a wide range of novel contexts (e.g., courtroom testimony, police witness interviews, credit checks, and, as here, background checks) under a com plex doctrine, with its cumbersome warrant and proba ble cause requirements and their myriad exceptions, that was designed with completely different circum stances in mind. Id. at 590-91. Moreover, declining to extend the Fourth Amendment to direct questioning will by no means leave individuals unprotected, as such con texts will remain governed by traditional Fifth and Sixth Amendment interrogation rights, and the right to infor mational privacy described below. See id. at 591-92.

Because neither the written inquiries directed at third parties nor the SF 85 questionnaire directed at the applicants will likely be deemed _searches,_ Appellants are unlikely to succeed on their Fourth Amendment claims.

D. Informational Privacy Claim

Although the district court correctly found that Ap pellants were unlikely to succeed on their APA and Fourth Amendment claims, it significantly underesti mated the likelihood that Appellants would succeed on their informational privacy claim. These constitutional errors stem in large part from the court's erroneous ripeness ruling; by limiting its analysis to the SF 85 questionnaire, the court failed to consider the most problematic aspect of the government's investigation- the open-ended Form 42 inquiries.

We have repeatedly acknowledged that the Constitu tion protects an _individual interest in avoiding disclo sure of personal matters._ In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999). This interest covers a wide range of personal matters, including sexual activity, Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983) (holding that questioning police applicant about her prior sexual activity violated her right to informational privacy), medical information, Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998) (_The constitutionally protected privacy interest in avoiding disclosure of personal matters clearly encompasses med ical information and its confidentiality._), and financial matters, Crawford, 194 F.3d at 958 (agreeing that public disclosure of social security numbers may implicate the right to informational privacy in _an era of rampant identity theft_). If the government's actions compel dis closure of private information, it _has the burden of showing that its use of the information would advance a legitimate state interest and that its actions are nar rowly tailored to meet the legitimate interest._ Craw ford, 194 F.3d at 959 (internal quotation marks omitted). We must _balance the government's interest in having or using the information against the individual's interest in denying access,_ Doe v. Att'y Gen., 941 F.2d 780, 796 (9th Cir. 1991), weighing, among other things:

_the type of [information] requested, . . . the po tential for harm in any subsequent nonconsensual disclosure, . . . the adequacy of safeguards to pre vent 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 towards access._

Id. (quoting United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir. 1980)) (alteration in original).

Both the SF 85 questionnaire and the Form 42 writ ten inquiries require the disclosure of personal informa tion and each presents a ripe controversy. Therefore, whereas the district court limited its analysis to the SF 85 questionnaire, we consider the constitutionality of both aspects of the investigation in turn.

1. SF 85 Questionnaire

Appellants concede that most of the questions on the SF 85 form are unproblematic and do not implicate the constitutional right to informational privacy. They do however challenge the constitutionality of one group of questions concerning illegal drugs. The questionnaire asks the applicant:

In the last year, have you used, possessed, supplied, or manufactured illegal drugs? . . . . If you an swered _Yes,_ provide information relating to the types of substance(s), the nature of the activity, and any other details relating to your involvement with illegal drugs. Include any treatment or counseling received.

The form indicates that _[n]either your truthful re sponse nor information derived from your response will be used as evidence against you in any subsequent crimi nal proceeding._ The district court concluded that the requested information implicated the right to informa tional privacy, but found that there were _adequate safe guards in place [to deal with these] sensitive questions._

Other courts have been skeptical that questions con cerning illegal drug use-much less possession, supply, or manufacture-would even implicate the right to infor mational privacy. For example, in Mangels v. Pena, 789 F.2d 836 (10th Cir. 1986), the Tenth Circuit held that the disclosure of firefighters' past illegal drug use did not violate their informational privacy rights. Id. at 839-40. The Court held that _[t]he possession of contraband drugs does not implicate any aspect of personal identity which, under prevailing precedent, is entitled to consti tutional protection. . . . Validly enacted drug laws put citizens on notice that this realm is not a private one._ Id. at 839 (internal citations omitted). In National Treasury Employees Union v. U.S. Department of Trea sury, 25 F.3d 237 (5th Cir. 1994), the Fifth Circuit con sidered a similar form to the SF 85 questionnaire, with almost identical questions concerning illegal drugs, and rejected the applicants' informational privacy claims. The Court raised similar concerns to the Tenth Circuit:

Today's society has made the bold and unequivocal statement that illegal substance abuse will not be tolerated. The government declared an all-out war on illegal drugs more than a decade ago. . . . Surely anyone who works for the government has a dimin ished 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 sub stance abuse.

Id. at 243. The Court also noted that the plaintiffs in that case were all federal employees in either _High_ or _Moderate_ risk _public trust_ positions, and were thus acutely _aware of [their] employer's elevated expecta tions in [their] integrity and performance._ Id. at 244.

Like the Tenth and Fifth Circuits, we are sensitive to the government's interest in uncovering and addressing illegal substance abuse among its employees and con tractors, given the public stance it has taken against such abuse. This government interest is undoubtedly relevant to the constitutional balancing inquiry: whe ther the forced disclosure _would advance a legitimate state interest and [is] narrowly tailored to meet the le gitimate interest._ Crawford, 194 F.3d at 959. We are less convinced, however, that the government's interest should inform the threshold question of whether re quested information is sufficiently personal to invoke the constitutional right to privacy. We doubt that the government can strip personal information of constitu tional protection simply by criminalizing the underlying conduct-instead, to force disclosure of personal infor mation, the government must at least demonstrate that the disclosure furthers a legitimate state interest. Drug dependance and abuse carries an enormous stigma in our society and _is not generally disclosed by individuals to the public._ Id. at 958. If we had to reach the issue, therefore, we would be inclined to agree with the district court that SF 85's drug questions reach sensitive issues that implicate the constitutional right to informational privacy.

We do not need to decide this issue, however, be cause even if the question requiring disclosure of prior drug use, possession, supply, and manufacture does im plicate the privacy right, it is narrowly tailored to achieve the government's legitimate interest. As our sister circuits have lucidly explained, the federal govern ment has taken a strong stance in its war on illegal drugs, and this stance would be significantly under mined if its own employees and contractors freely ig nored its laws. By requiring applicants to disclose whe ther they have _used, possessed, supplied, or manufac tured illegal drugs_ within the past year, and, if so, to explain the _nature of the activity_ and _any other de tails relating to [the applicant's] involvement with illegal drugs,_ the government has crafted a narrow inquiry designed to limit the disclosure of personal information to that which is necessary to further the government's legitimate interest.

The same cannot be said, however, for requiring ap plicants to disclose _any treatment or counseling re ceived_ for their drug problems. Information relating to medical treatment and psychological counseling fall squarely within the domain protected by the constitu tional right to informational privacy. See Norman- Bloodsaw, 135 F.3d at 1269; Doe, 941 F.2d at 796. The government has not suggested any legitimate interest in requiring the disclosure of such information; indeed, any treatment or counseling received for illegal drug use would presumably lessen the government's concerns re garding the underlying activity. Because SF 85 appears to compel disclosure of personal medical information for which the government has failed to demonstrate a legiti mate state interest, Appellants are likely to succeed on this-albeit narrow-portion of their informational pri vacy challenge to SF 85.

2. Form 42 Inquiries

The Form 42 written inquiries-omitted from the district court's analysis as a result of its erroneous ripe ness holding-are much more problematic. Form 42 solicits _any adverse information_ concerning _financial integrity,_ _abuse of alcohol and/or drugs,_ _mental or emotional stability,_ _general behavior or conduct,_ and _other matters._ These open-ended questions are de signed to elicit a wide range of adverse, private informa tion that _is not generally disclosed by individuals to the public_ and therefore seemingly implicate the right to informational privacy. Crawford, 194 F.3d at 958.6

The government suggests that even if the informa tion disclosed in the investigation implicates the right to informational privacy, the scheme must be upheld be cause the government has taken measures to keep the information from being disclosed to the general public. Although the risk of public disclosure is undoubtedly an important consideration in our analysis, see Planned Parenthood of S. Ariz. v. Lawall, 307 F.3d 783, 790 (9th Cir. 2002), it is only one of many factors that we should consider, id. at 789-90 (_[T]he right to _informational privacy_ . . . applies both when an individual chooses not to disclose highly sensitive information to the gov ernment and when an individual seeks assurance that such information will not be made public._); Norman- Bloodsaw, 135 F.3d at 1269 (noting that a government action can violate the right to privacy without disclosure to third parties); Doe, 941 F.2d at 796 (listing, as two factors among many, __the potential for harm in any subsequent nonconsensual disclosure [and] the adequacy of safeguards to prevent authorized disclosure.__) (quot ing Westinghouse Elec. Corp., 638 F.2d at 578). There fore, although safeguards exist to help prevent disclo sure of the applicants' highly sensitive information, Fed eral Appellees must still demonstrate that the back ground investigations are justified by legitimate state interests and that Form 42's questions are _narrowly tailored to meet those legitimate interests._ Thorne, 726 F.2d at 469.

We agree with the government that it has several legitimate reasons for investigating its contractors. NASA has an interest in verifying its contractors' identi ties to make sure that they are who they say they are, and it has an interest in ensuring the security of the JPL facility so as not to jeopardize the costly investments housed therein. Appellants concede, as they must, that these are legitimate government interests.

The government has failed to demonstrate, however, that Form 42's questions are _narrowly tailored_ to meet these legitimate interests. Initially, we note that although NASA has a general interest in keeping the JPL facility secure, there is no specific evidence in the record to suggest that any of the _low risk_ JPL person nel pose such a security risk; indeed, NASA appears to designate as _moderate risk_ any individual who has the _opportunity to cause damage to a significant NASA as set or influence the design or implementation [of] a secu rity mechanism designed to protect a significant NASA asset._ More importantly, Form 42's broad, open-ended questions appear to range far beyond the scope of the legitimate state interests that the government has pro posed. Asking for _any adverse information about this person's employment, residence, or activities_ may so licit some information relevant to the applicant's identity or security risk, but there are no safeguards in place to limit the disclosures to information relevant to these interests. Instead, the form invites the recipient to re veal any negative information of which he or she is aware. It is difficult to see how the vague solicitation of derogatory information concerning the applicant's _gen eral behavior or conduct_ and _other matters_ could be narrowly tailored to meet any legitimate need, much less the specific interests that Federal Appellees have offered to justify the new requirement.

Finally, the context in which the written inquiries are posed further supports Appellants' claim. In Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983), we fo cused not only on the private nature of questions asked, but also on the lack of standards governing the inquiry. We held that questioning a female police applicant about her past sexual relations with another officer in the de partment violated her constitutional right to informa tional privacy, id. at 468, finding that many of the ques tions posed went beyond any relevant lines of question ing, id. at 469-70. More importantly, we noted that the city had not set any standards for inquiring about the private information. Id. at 470. _When the state's questions directly intrude on the core of a person's con stitutionally protected privacy and associational inter ests . . . , an unbounded, standardless inquiry, even if founded upon a legitimate state interest, cannot with stand the heightened scrutiny with which we must view the state's action._ Id. In this case, the government's questions stem from SF 85's extremely broad authoriza tion, allowing it _to obtain any information_ from any source, subject to other releases being necessary only in some vague and unspecified contexts. Federal Appel lees have steadfastly refused to provide any standards narrowly tailoring the investigations to the legitimate interests they offer as justification. Given that Form 42's open-ended and highly private questions are autho rized by this broad, standardless waiver and do not ap pear narrowly tailored to any legitimate government interest, the district court erred in finding that Appel lants were unlikely to succeed on their informational privacy claim.

E. Balance of Hardships

The balance of hardships tips sharply toward Appel lants, who face a stark choice-either violation of their constitutional rights or loss of their jobs. The district court erroneously concluded that Appellants will not suf fer any irreparable harm because they could be retroac tively compensated for any temporary denial of employ ment. It is true that _monetary injury is not normally considered irreparable,_ L.A. Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1202 (9th Cir. 1980), and the JPL employees who choose to give up their jobs may later be made whole financially if the pol icy is struck down. However, in the meantime, there is a substantial risk that a number of employees will not be able to finance such a principled position and so will be coerced into submitting to the allegedly unconstitutional NACI investigation. Unlike monetary injuries, constitu tional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm. See Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997). Moreover, the loss of one's job does not carry merely monetary consequences; it carries emotional damages and stress, which cannot be compen sated by mere back payment of wages.

On the other side of the balance, NASA has not dem onstrated any specific harm that it will face if it is en joined for the pendency of the adjudication from apply ing its broad investigatory scheme to _low risk_ JPL contract employees, many of whom have worked at the laboratory for decades. As Caltech argues, JPL has suc cessfully functioned without any background investiga tions since the first contract between NASA and JPL in 1958, so granting injunctive relief would make NASA no worse off than it has ever been. Moreover, an injunction in this case would not affect NASA's ability to investi gate JPL personnel in _high risk_ or _moderate risk_ positions, significantly undercutting any lingering secu rity fears. Finally, we note that NASA has taken years to implement NACI at JPL, a fact we construe as weak ening any urgency in imposing the investigations before Appellants' claims are fully adjudicated on their merits.

III

Caltech separately argues that any injunctive relief should not encompass it because, as a private actor, it cannot be held liable for constitutional violations that arise from the government-imposed background investi gations. Caltech is correct that there exists a _presump tion that private conduct does not constitute government action._ Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999). This presumption is rebut ted, however, when a sufficient nexus _make[s] it fair to attribute liability to the private entity as a governmental actor. Typically, the nexus consists of some willful par ticipation in a joint activity by the private entity and the government._ Id. at 843 (emphasis added).

Caltech notes that it initially opposed the new back ground investigations, which are conducted entirely by NASA and other government agencies; therefore, it claims that the investigations are not _joint activities_ and Caltech is not a _willful participant._ We have some sympathy for this argument, and if Caltech had done nothing more than abide by the contract terms unilater ally imposed by NASA, we might agree with its position. Here, however, the record is clear that Caltech did do more-it established, on its own initiative, a policy that JPL employees who failed to obtain federal identifica tion badges would not simply be denied access to JPL, they would be terminated entirely from Caltech's em ployment. This decision does not necessarily render Caltech liable as a governmental actor, but it raises seri ous questions as to whether the university has in fact now become a willful and joint participant in NASA's investigation program, even though it was not so ini tially. Caltech's threat to terminate non-compliant em ployees is central to the harm Appellants face and cre ates the coercive environment in which they must choose between their jobs or their constitutional rights. More over, with the government enjoined, Caltech faces no independent harm to itself, so the balance of hardships tips overwhelmingly in Appellants' favor. Therefore, we hold that preliminary injunctive relief should apply both to Caltech and to Federal Appellees.

IV

Appellants have raised serious questions as to the merits of their informational privacy claim and the bal ance of hardships tips sharply in their favor. The dis trict court's denial of the preliminary injunction was based on errors of law and hence was an abuse of discre tion. Accordingly, we reverse and remand with instruc tions to fashion preliminary injunctive relief consistent with this opinion.

REVERSED and REMANDED.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

8. APPENDIX B

 

9. UNITED STATES COURT OF APPEALS

10. FOR THE NINTH CIRCUIT

 

 

 

 

No. 07-56424

ROBERT M. NELSON; WILLIAM BRUCE BANERDT; 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

v.

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

 

 

 

 

 

 

Argued and Submitted: Dec. 5, 2007

Filed: Jan. 11, 2008

 

 

 

 

Before: DAVID R. THOMPSON and KIM MCLANE WARD LAW, Circuit Judges, and EDWARD C. REED, JR.,7 Dis trict Judge.

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 Aero nautics and Space Administration (_NASA_) and the California Institute of Technology (_Caltech_). Appel lants sued NASA, Caltech, and the Department of Com merce (collectively _Appellees_), challenging NASA's re cently adopted requirement that _low risk_ contract em ployees like themselves submit to in-depth background investigations. The district court denied Appellants' re quest for a preliminary injunction, finding they were un likely to succeed on the merits and unable to demon strate irreparable harm. Because Appellants raise seri ous legal and constitutional questions and because the balance of hardships tips sharply in their favor, we re verse and remand.

I

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 proce dures requiring _low risk_ JPL personnel to yield to broad background investigations as a condition of re taining access to JPL's facilities. NASA's new policy re quires that every JPL employee undergo a National Agency Check with Inquiries (NACI), the same back ground investigation required of government civil ser vice employees, before he or she can obtain an identifica tion 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, including residential, edu cational, 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 gov ernment databases: (1) Security/Suitability Investiga tions Index; (2) the Defense Clearance and Investigation Index; (3) the FBI Name Check; and (4) the FBI Na tional 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] activi ties from schools, residential management agents, em ployers, criminal justice agencies, retail business estab lishments, or other sources of information._ The infor mation sought _may include, but is not limited to, [the applicant's] academic, residential, achievement, perfor mance, attendance, disciplinary, employment history, and criminal history record information._8 The record is vague as to the exact extent to and manner in which the government will seek this information, but it is un disputed that each of the applicants' references, employ ers, and landlords will be sent an _Investigative Request for Personal Information_ (Form 42), which asks whe ther the recipient has _any reason to question [the appli cant's] honesty or trustworthiness_ or has _any adverse information about [the applicant's] employment, resi dence, or activities_ concerning _violations of law,_ _fin ancial integrity,_ _abuse of alcohol and/or drugs,_ _men tal or emotional stability,_ _general behavior or con duct,_ or _other matters._ The recipient is asked to ex plain any adverse information noted on the form. Once the information has been collected, NASA and the fed eral Office of Personnel Management determine whe ther the employee is _suitable_ for continued access to NASA's facilities, though the exact mechanics of this suitability determination are in dispute.9

Since it was first created in 1958, NASA, like all oth er federal agencies, has conducted NACI investigations of its civil servant employees but not of its contract em ployees. Around the year 2000, however, NASA _deter mined that the incomplete screening of contractor em ployees posed a security vulnerability for the agency_ and began to consider requiring NACI investigations for contract employees as well. In November 2005, revi sions to NASA's Security Program Procedural Require ments imposed the same baseline NACI investigation for all employees, civil servant or contractor. These changes were not made applicable to JPL employees until January 29, 2007, when NASA modified its contract with Caltech to include the requirement. Caltech vigor ously opposed the change, but NASA invoked its con tractual right to unilaterally modify the contract and directed Caltech to comply immediately with the modifi cations. Caltech subsequently adopted a policy-not re quired 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 em ployees 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 Proce dure Act (_APA_) by acting without statutory authority in imposing the investigations on contract employees; (2) the investigations violate their constitutional right to informational privacy; and (3) the investigations consti tute unreasonable searches prohibited by the Fourth Amendment.

On September 24, 2007, Appellants moved for a pre liminary 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' re quest. It divided Appellants' claims into two catego ries-those challenging the SF 85 questionnaire itself and those challenging the grounds upon which an em ployee 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 sup port for the investigations in the National Aeronautics and Space Act of 1958 (the _Space Act_), which allows NASA to establish security requirements as deemed _necessary in the interest of the national security._ 42 U.S.C. § 2455(a). Limiting its review to the SF 85 ques tionnaire, the court found the form implicated the con stitutional right to informational privacy but was nar rowly tailored to further the government's legitimate security interest. Finally, the court rejected Appellants' Fourth Amendment argument, holding that a back ground investigation was not a _search_ within the meaning of the Fourth Amendment. After concluding that Appellants had little chance of success on the mer its, the district court also found that they could not dem onstrate irreparable injury, because any unlawful denial of access from JPL 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 conclud ed that the information sought by SF 85 and its waiver requirement raised serious privacy issues and ques tioned whether it was narrowly tailored to meet the gov ernment's legitimate interest in ascertaining the iden tity of its low-risk employees. Id. at 716. The panel fur ther found that _[t]he balance of hardships tips sharply in favor of [A]ppellants,_ who risk losing their jobs pending appeal, whereas there was no exigent reason for performing the NACI investigations during the few months pending appeal given that _it has been more than three years since the Presidential Directive [upon which the government relies] was issued._ Id. at 716.

II

To obtain preliminary injunctive relief, Appellants must demonstrate either _(1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in its favor._ Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir. 1999). The two prongs are not separate tests but rather _extremes of a single continuum,_ so _the greater the relative hardship to [the party seeking the preliminary injunction], the less probability of success must be shown._ Id. (internal quotation marks omitted).

Upon review of the merits of the district court's de nial of preliminary injunctive relief, we find ourselves in agreement with the motions panel. Appellants have demonstrated serious questions as to certain of their claims on which they are likely to succeed on the merits, and the balance of hardships tips sharply in their favor. We therefore conclude that the district court abused its discretion in denying Appellants' motion for a prelimi nary injunction, and we reverse and remand.

A. Standing and Ripeness

The district court found that the justiciability doc trines of ripeness and standing precluded consideration of Appellants' claims, except as they concerned the SF 85 questionnaire and associated waiver. We agree with the district court that Appellants' claims concerning the suitability determination are unripe and unfit for judi cial review; however, the district court misconstrued Ap pellants' informational privacy claim, viewing it as lim ited to the SF 85 questionnaire alone.

To enforce Article III's limitation of federal jurisdic tion to _cases and controversies,_ plaintiffs must demon strate both standing and ripeness. To demonstrate standing, a plaintiff _must have suffered an _injury in fact_-an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) actual or imminent, not conjectural or hypothetical._ Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) (internal citations and quota tion marks omitted). The ripeness doctrine similarly serves to _to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies_ and requires assessing __both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.__ Ass'n of Am. Med. Colls. v. United States, 217 F.3d 770, 779-80 (9th Cir. 2000) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967)).

In analyzing justiciability, the district court distilled Appellants' claims into two basic arguments: (1) _that SF 85 is overly broad and intrusive considering the _low-risk_ nature of [appellants'] jobs at JPL_ and (2) _that JPL's internal policy, which lists various grounds upon which an employee can be determined unsuitable for employment, is unconstitutional._ We agree that challenges to the suitability determination are unripe because the record does not sufficiently establish how the government intends to determine _suitability_- accordingly, any claims are _strictly speculative._ We also agree that Appellants have standing to challenge the SF 85 questionnaire, and because _it is undisputed that if [Appellants] do not sign the SF 85 waiver by Oc tober 5, 2007,_ they will _be deemed to have voluntarily resigned,_ there exists a _concrete injury that is immi nent and not hypothetical_ and thus ripe for review.

However, the district court overlooked Appellants' challenges to the government investigation that will result from the SF 85 requirement that the applicant sign an _authorization for release of information._ On its face, this waiver authorizes the government to collect _any information . . . from schools, residential man agement agents, employers, criminal justice agencies, retail business establishments, or other sources of infor mation_ _includ[ing], but . . . not limited to, . . . aca demic, residential, performance, attendance, disciplin ary, employment history, and criminal history record in formation._ It is uncontested that as a result of this au thorization, the government Office of Personnel Man agement will send out _Investigative Request[s] for Per sonal Information,_ Form 42, to references, employers, and landlords. This form seeks highly personal informa tion using an open-ended questioning technique, includ ing asking for _any adverse information_ at all or any _additional information which . . . may have a bearing on this person's suitability for government em ployment._ Any harm that results from Form 42's dis semination and the information consequently provided to the government will be concrete and immediate.

Because Federal Appellees freely admit that Form 42 will be used in NASA's background investigations, Appellants have standing to challenge Form 42's distri bution and solicitation of private information, and the issues raised in these challenges are ripe for review. The district court erred by excluding Form 42 claims from its analysis of Appellants' likelihood of success on the merits.

B. APA Claims

Appellants argue that Federal Appellees violated the APA by imposing background investigations on contract employees without any basis in executive order or stat ute. In response, Federal Appellees find authorization for their program in three statutory and regulatory sources: The Homeland Security Presidential Directive 12 (_HSPD 12_), the Federal Information Security Man agement Act (_FISMA_), and the Space Act.

Both HSPD 12 and FISMA fail on their face to au thorize the broad background investigations NASA has imposed on JPL personnel. HSPD 12 creates a Federal policy of _establishing a mandatory Government-wide standard for secure and reliable forms of identification issued by the Federal Government to its employees and contractors (including contractor employees)._ How ever, many of the questions in SF 85 and Form 42 seek much more information than that which would securely and reliably identify the employees. Nelson, 506 F.3d at 716. Similarly, FISMA gives the Secretary of Com merce authority to _prescribe standards and guidelines pertaining to Federal information systems,_ 40 U.S.C. § 11331(a)(1) (2002), but NASA's NACI requirement is hardly limited to protecting _Federal information systems._ Indeed, the background investigations are required of all JPL personnel, whether or not they have access to information systems, and therefore cannot be entirely justified, if at all, by FISMA. That neither HSPD 12 nor FISMA authorize NASA's actions is rein forced by Federal Appellees' own declarations that _the decision to require at a minimum a NACI for NASA con tractor employees dates back to the 2000 to 2001 time frame,_ well before either FISMA was passed in 2002 or HSPD 12 was issued in 2004.

The Space Act, at first glance, appears more promis ing; however, it too fails to justify requiring these open- ended investigations of _low-risk_ contract employees. The Space Act authorizes the NASA Administrator to _establish such security requirements, restrictions, and safeguards as he deems necessary in the interest of the national security._ 42 U.S.C. § 2455(a) (1958). The dis trict court found that this language _clearly gives NASA the authority to implement background investigations as part of the security screening of contractors;_ however, it ignored the statute's limiting language that the secu rity programs established be _deem[ed] necessary in the interest of the national security._ This phrase must be read in light of Cole v. Young, 351 U.S. 536, 76 S. Ct. 861, 100 L. Ed. 1396 (1956), decided just two years be fore the Space Act was passed. In Cole, the Supreme Court considered a statute that gave certain government officials the power to summarily dismiss employees _when deemed necessary in the interest of the national security._ Id. at 538, 76 S. Ct. 861 (internal quotation marks omitted). The Court noted:

While that term is not defined in the Act, we think it clear from the statute as a whole that that term was intended to comprehend only those activities of the Government that are directly concerned with the protections of the Nation from internal subversion or foreign aggression, and not those which contribute to the strength of the Nation only through their impact on the general welfare.

Id. at 544, 76 S. Ct. 861. The Court found it clear _that _national security_ was not used in the Act in an all-inclusive sense, but was intended to refer only to the protection of _sensitive_ activities. It follows that an employee can be dismissed _in the interest of the na tional security_ under the Act only if he occupies a _sen sitive_ position. . . ._ Id. at 551, 76 S. Ct. 861. We agree with Appellants that the use of identical limiting language in the Space Act so soon after Cole was decided strongly suggests that Congress expected the term _national security_ to be similarly construed in this con text. Therefore, the Space Act's authorization to estab lish _security requirements, restrictions, and safe guards_ applies to _only those activities of the Govern ment that are directly concerned with the protections of the Nation from internal subversion or foreign aggres sion,_ id. at 544, 76 S. Ct. 861, and background investi gations can be deemed _in the interest of the national security_ _only if [the target of the investigation] occu pies a _sensitive_ position,_ id. at 551, 76 S. Ct. 861. Here, it is undisputed that the Appellants do not occupy _sensitive_ positions; they are low-risk employees. Be cause the district court's reading of the Space Act failed to account for the Supreme Court's holding in Cole, its conclusion as to Appellants' likelihood of success as to their APA claim was erroneous.

C. Informational Privacy Claims

The district court similarly underestimated the likeli hood that Appellants would succeed on their informa tional privacy claim. We have repeatedly acknowledged that the Constitution protects an _individual interest in avoiding disclosure of personal matters._ In re Craw ford, 194 F.3d 954, 958 (9th Cir. 1999). This interest covers a wide range of personal matters, including sex ual activity, Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983) (holding that questioning police applicant about her prior sexual activity violated her right to in formational privacy), medical information, Norman- Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998) (_The constitutionally protected privacy interest in avoiding disclosure of personal mat ters clearly encompasses medical information and its confidentiality_), and financial matters, Crawford, 194 F.3d at 958 (agreeing that public disclosure of social security numbers may implicate the right to informa tional privacy in _an era of rampant identity theft_). If the government's actions compel disclosure of private information, it _has the burden of showing that its use of the information would advance a legitimate state inter est and that its actions are narrowly tailored to meet the legitimate interest._ Crawford, 194 F.3d at 959 (internal quotation marks omitted).

The district court correctly concluded that the re quested information in this case is sufficiently private to implicate the right to informational privacy. SF 85 re quires the applicant to disclose any illegal drug use within the past year, along with any treatment or coun seling received. The Supreme Court has made clear, in the Fourth Amendment context, that individuals' rea sonable expectations of privacy in their medical history includes information about drug use, Skinner v. Ry. La bor Executives' Ass'n, 489 U.S. 602, 617, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989), and, by analogy, drug treat ment or counseling. Moreover, Form 42 inquiries dis tributed as part of the NACI-omitted from the district court's analysis as a result of its erroneous ripeness holding-are even more probing. Form 42 solicits _any adverse information_ concerning _financial integrity,_ _abuse of alcohol and/or drugs,_ _mental or emotional stability,_ and _other matters._ These open-ended ques tions are designed to elicit a wide range of adverse, pri vate information that _is not generally disclosed by indi viduals to the public,_ Crawford, 194 F.3d at 958; accord ingly, they must be deemed to implicate the right to in formational privacy.

Considering the breadth of Form 42's questions, it is difficult to see how they could be narrowly tailored to meet any legitimate need, much less the specific inter ests that Federal Appellees have offered to justify the new requirement. Asking for _any adverse information about this person's employment, residence, or activities_ may solicit some information relevant to _identity,_ _na tional security,_ or _protecting federal information sys tems,_ but there are absolutely no safeguards in place to limit the disclosures to information relevant to these in terests. Instead, the form invites the recipient to reveal any negative information of which he or she is aware. There is nothing _narrowly tailored_ about such a broad inquisition.

Finally, the context in which the written inquiries are posed further supports Appellants' claim. In Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983), we fo cused not only on the private nature of questions asked, but also on the lack of standards governing the inquiry. We held that questioning a female police applicant about her past sexual relations with another officer in the de partment violated her constitutional right to informa tional privacy, id. at 468, finding that many of the ques tions posed went beyond any relevant lines of question ing, id. at 469-70. More importantly, we noted that the city had not set any standards for inquiring about the private information. Id. at 470. _When the state's questions directly intrude on the core of a person's con stitutionally protected privacy and associational inter ests . . . , an unbounded, standardless inquiry, even if founded upon a legitimate state interest, cannot with stand the heightened scrutiny with which we must view the state's action._ Id. In this case, the government's questions stem from SF 85's extremely broad authoriza tion, allowing it _to obtain any information_ from any source, subject to other releases being necessary only in some vague and unspecified contexts. Federal Appel lees have steadfastly refused to provide any standards narrowly tailoring the investigations to the legitimate interests they offer. Given that Form 42's open-ended and highly private questions are authorized by this broad, standardless waiver and do not appear narrowly tailored to any legitimate government interest, the dis trict court erred in finding that Appellants were unlikely to succeed on their informational privacy claim.

D. Fourth Amendment Claims

We agree with the district court's conclusion that Appellants are unlikely to succeed on their Fourth Amendment claims. The government's actions are not likely to be deemed _searches_ within the meaning of the Fourth Amendment. An action to uncover information is considered a _search_ if the target of the search has a _reasonable expectation of privacy_ in the information being sought, meaning a _subjective expectation of pri vacy . . . that society is prepared to recognize as rea sonable._ United States v. Diaz-Castaneda, 494 F.3d 1146, 1151 (9th Cir. 2007) (citing Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring)). Under our Fourth Amend ment jurisprudence, one does not have a reasonable ex pectation of privacy in one's information merely because that information is of a _private_ nature; instead, such an otherwise reasonable expectation can evaporate in any of several ways. See, e.g., United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976) (holding that there is no reasonable expectation of pri vacy in bank records because the information was volun tarily disclosed to the bank).

The Form 42 questionnaire sent to third parties can not be considered a _search,_ because _the Fourth Amendment does not prohibit the obtaining of informa tion revealed to a third party and conveyed by him to Government authorities. . . ._ Miller, 425 U.S. at 443, 96 S. Ct. 1619. This principle has its roots in Hoffa v. United States, 385 U.S. 293, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966), and United States v. White, 401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971), both of which dealt with the government's use of confidential informants and held that the Fourth Amendment _affords no pro tection to _a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.__ White, 401 U.S. at 749, 91 S. Ct. 1122 (quot ing Hoffa, 385 U.S. at 302, 87 S. Ct. 408). In Miller, the Supreme Court held that the Fourth Amendment did not protect subpoenaed bank records, seemingly extend ing the Hoffa/White principle to cover all information knowingly disclosed to the government by a third party. Under Miller, therefore, written inquiries sent to third parties, no matter how private the subject of their ques tioning, cannot be considered _searches._

Similarly, the questions posed directly to the appli cant on the SF 85 questionnaire are also unlikely to be considered Fourth Amendment _searches,_ because that Amendment has not generally been applied to direct questioning. Instead, historically, when _the objective is to obtain testimonial rather than physical evidence, the relevant constitutional amendment is not the Fourth but the Fifth._ Greenawalt v. Ind. Dep't of Corr., 397 F.3d 587, 591 (7th Cir. 2005). As Judge Posner notes in Greenawalt, applying the Fourth Amendment to direct questioning would force the courts to analyze a wide range of novel contexts (e.g., courtroom testimony, po lice witness interviews, credit checks, and, as here, back ground checks) under a complex doctrine, with its cum bersome warrant and probable cause requirements and their myriad exceptions, that was designed with com pletely different circumstances in mind. Id. at 590-91. Moreover, declining to extend the Fourth Amendment to direct questioning will by no means leave individuals unprotected, as such contexts will remained governed by traditional Fifth and Sixth Amendment interrogation rights and the right to informational privacy described above. See id. at 591-92.

E. Balance of Hardships

The balance of hardships tips sharply toward Appel lants, who face a stark choice-either violation of their constitutional rights or loss of their jobs. The district court erroneously concluded that Appellants will not suffer any irreparable harm because they could be ret roactively compensated for any temporary denial of em ployment. It is true that _monetary injury is not nor mally considered irreparable,_ L.A. Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1202 (9th Cir. 1980), and the JPL employees who choose to give up their jobs may later be made whole financially if the policy is struck down. However, in the meantime, there is a substantial risk that a number of employees will not be able to finance such a principled position and so will be coerced into submitting to the allegedly uncon stitutional NACI investigation. Unlike monetary inju ries, constitutional violations cannot be adequately rem edied through damages and therefore generally consti tute irreparable harm. See Monterey Mech. Co. v. Wil son, 125 F.3d 702, 715 (9th Cir. 1997). Moreover, the loss of one's job does not carry merely monetary conse quences; it carries emotional damages and stress, which cannot be compensated by mere back payment of wages.

On the other side of the balance, NASA has not dem onstrated any specific harm that it will face if it is en joined for the pendency of the adjudication from apply ing its broad investigatory scheme to _low risk_ JPL contract employees, many of whom have worked at the laboratory for decades. As Caltech argues, JPL has successfully functioned without any background investi gations since the first contract between NASA and JPL in 1958, so granting injunctive relief would make NASA no worse off than it has ever been. Moreover, an injunc tion in this case would not affect NASA's ability to inves tigate JPL personnel in _sensitive positions,_ signifi cantly undercutting any lingering security fears. Fi nally, we note that NASA has taken years to implement NACI at JPL, a fact we construe as weakening any ur gency in imposing the investigations before Appellants' claims are fully adjudicated on their merits.

III

Caltech separately argues that any injunctive relief should not encompass it because, as a private actor, it cannot be held liable for constitutional violations that arise from the government-imposed background investi gations. Caltech is correct that there exists a _presump tion that private conduct does not constitute government action._ Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999). This presumption is rebut ted, however, when a sufficient nexus _make[s] it fair to attribute liability to the private entity as a governmental actor. Typically, the nexus consists of some willful par ticipation in a joint activity by the private entity and the government._ Id. at 843 (emphasis added).

Caltech notes that it initially opposed the new back ground investigations, which are conducted entirely by NASA and other government agencies; therefore, it claims that the investigations are not _joint activities_ and Caltech is not a _willful participant._ We have some sympathy for this argument, and if Caltech had done nothing more than abide by the contract terms unilater ally imposed by NASA, we might agree with its position. Here, however, the record is clear that Caltech did do more-it established, on its own initiative, a policy that JPL employees who failed to obtain federal identifica tion badges would not simply be denied access to JPL, they would be terminated entirely from Caltech's em ployment. This decision does not necessarily render Caltech liable as a governmental actor, but it raises seri ous questions as to whether the university has in fact now become a willful and joint participant in NASA's investigation program, even though it was not so ini tially. Caltech's threat to terminate non-compliant em ployees is central to the harm Appellants face and cre ates the coercive environment in which they must choose between their jobs or their constitutional rights. More over, with the government enjoined, Caltech faces no independent harm to itself, so the balance of hardships tips overwhelmingly in Appellants' favor. Therefore, we hold that preliminary injunctive relief should apply both to Caltech and to Federal Appellees.

IV

Appellants have raised serious questions as to the merits of their informational privacy and APA claims, and the balance of hardships tips sharply in their favor. The district court's denial of the preliminary injunction was based on errors of law and hence was an abuse of discretion. Accordingly, we reverse and remand with instructions to fashion preliminary injunctive relief con sistent with this opinion.

REVERSED and REMANDED.

11. APPENDIX C

 

12. UNITED STATES COURT OF APPEALS

13. FOR THE NINTH CIRCUIT

 

 

 

 

No. 07-56424

ROBERT M. NELSON; WILLIAM BRUCE BANERDT; 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

v.

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

 

 

 

 

 

 

Oct. 11, 2007

 

 

 

 

ORDER

 

 

 

 

Before: B. FLETCHER, STEPHEN REINHARDT and MAR SHA S. BERZON, Circuit Judges.

Appellants' motion for an injunction pending appeal is granted. Appellants raise serious legal and constitu tional questions, and the balance of hardships tips sharply in their favor. See Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983), rev'd in part on other grounds, 463 U.S. 1328, 104 S. Ct. 10, 77 L. Ed. 2d 1431 (1983), 464 U.S. 879, 104 S. Ct. 221, 78 L. Ed. 2d 217 (1983).

Appellants raise various legal and constitutional challenges to appellees' requirement that appellants each complete a questionnaire and execute a waiver for release of information. The questionnaire requires some information to which appellants do not object, such as appellant's name, date of birth, place of birth, and social security number. However, the questionnaire also in cludes inquiries to which appellants do object, including an inquiry about counseling they may have received. Appellants also object to the general waiver for release of information on the ground that it is overly broad and is not limited to information pertinent to their identity.

Appellees' questionnaire and waiver were adopted to implement Homeland Security Presidential Directive 12 (HSPD-12), which requires the promulgation of a fed eral standard for _secure and reliable forms of identi fication._ Appellees' interest in obtaining the completed forms for the purpose of investigating the identity of ap pellants is questionable, as the information that may be obtained goes far beyond that purpose. The waiver for release of information form authorizes appellees to per form a background investigation _to obtain any informa tion relating to activities from schools, residential man agement agents, employers, criminal justice agencies, retail business establishments, or other sources of infor mation._ Most appellants have worked for the Jet Pro pulsion Laboratory for over twenty years; none are re quired to have security clearances, as none have access to classified or secret material. All appellants have been designated _low risk_ employees.

Because of the nature of the information subject to which the waiver applies, serious privacy concerns arise. This court has recognized the right to informational pri vacy. To justify actions infringing upon the right, the government must show that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet that interest. See In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999); see also Whalen v. Roe, 429 U.S. 589, 598-99, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977).

The balance of hardships tips sharply in favor of ap pellants because if appellants do not complete the ques tionnaires for non-sensitive positions and the waivers for release of information, they are scheduled to lose their jobs before the appeal will be heard. On the other side of the scale, there is no emergency as to appellees' need for the answers to the questionnaires or for the execu tion of the waiver forms during the less than two months remaining before the case will be argued; it has been more than three years since the Presidential Directive the government is relying upon was issued. Moreover, the need for the information to be collected is question able in general, given the absence of any apparent rela tionship between its collection and the production of reliable identification cards for these employees. Ac cordingly, the injunction granted by this court on Octo ber 5, 2007 will continue in effect pending an expeditious appeal.

Appellants' motion for a stay of district court pro ceedings is denied.

The briefing schedule previously established remains in effect.

The Clerk shall calendar this appeal during the week of December 3-7, 2007, in San Francisco or Pasadena, California.

 

 

 

 

 

 

 

 

 

 

 

 

14. APPENDIX D

 

15. UNITED STATES DISTRICT COURT

16. FOR THE CENTRAL DISTRICT OF CALIFORNIA

 

 

 

 

Case No. CV 07-5669 ODW (VBKx)

ROBERT M. NELSON, WILLIAM BRUCE BANERDT, 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 AND PAUL R. WEISSMAN, PLAINTIFFS

v.

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; AND

DOES 1-100, DEFENDANTS

 

 

 

 

 

 

 

[Filed: Oct. 3, 2007]

 

 

 

 

ORDER DENYING PLAINTIFFS' MOTION FOR

PRELIMINARY INJUNCTION

 

 

 

 

I. INTRODUCTION

This is a privacy rights action brought by 28 plain tiffs who are scientists, engineers, and other personnel employed by California Technical Institute to work at NASA's Jet Propulsion Laboratory pursuant to a gov ernment contract. Plaintiffs object to Defendants' im plementation of a new security background check.

Plaintiffs allege that the implementation of the new security measures violate: (1) their Fourth Amendment protection from unreasonable searches and seizures; (2) their Fourteenth Amendment right to privacy; (3) the Administrative Procedure Act; (4) the Privacy Act; and (5) the California Constitution. Plaintiffs seek in junctive and declaratory relief. This Court has jurisdic tion to hear this action under 28 U.S.C. § 1331.

Currently before the Court is Plaintiffs' Motion for Preliminary Injunction, filed on August 30, 2007. Plain tiffs argue that, if a preliminary injunction is not grant ed, they will either have to comply with the new security measures or risk losing their jobs. After review of the parties' submissions, the amicus curiae briefs and the case file, as well as the arguments advanced by counsel at the hearing, the Court hereby DENIES Plaintiffs' Motion for Preliminary Injunction.

II. FACTUAL BACKGROUND

Defendant National Aeronautics and Space Adminis tration ("NASA") was created by Congress in 1958. De fendant California Institute of Technology ("Caltech") is a non-profit educational institution located in Pasadena, California. The Jet Propulsion Laboratory ("JPL") is an operating division of Caltech, staffed entirely by Caltech employees. Since 1959, Caltech has operated JPL pur suant to a written contract as a NASA Federally Fun ded Research and Development Center. In short, Plain tiffs are contract employees for the federal government. JPL's actual physical facilities are also owned by NASA.

The 28 named Plaintiffs are scientists, engineers, and administrative support personnel employed by Caltech to work at the JPL facility on NASA programs. Plain tiffs allege that many of the named plaintiffs have worked at JPL for more than 20 years. None of the plaintiffs allegedly have had prior security clearances nor have they previously worked with classified material of any kind. Plaintiffs further contend that all research data that they generate is in the public domain and their findings are freely shared with the scientific community and the public.

On August 27, 2004, President Bush signed Home land Security Presidential Directive 12 ("HSPD-12"), entitled "Policy for a Common Identification Standard for Federal Employees and Contractors," applicable to all Executive Branch departments and agencies. HSPD- 12 directed the Secretary of Commerce to promulgate a Federal standard for "secure and reliable forms of iden tification" within six months. HSPD-12 defined "secure and reliable forms of identification" to mean identifica tion that is: (a) "issued based on sound criteria for veri fying an individual employee's identity;" (b) "strongly resistant to identity fraud, tampering, counterfeiting and terrorist exploitation;" (c) "can be rapidly authenti cated electronically;" and (d) "is issued only by provid ers whose reliability has been established by an official accreditation process."

In response to HSPD-12, in March 2006, the U.S. De partment of Commerce ("DOC"), also named as a defen dant in this action, promulgated a standard entitled "Personal Identification Verification (PIV) of Federal Employees and Contractors," codified at FIPS PUB 201-1. The sole authority for the PIV standard was based on HSPD-12 and imposed a background investiga tion requirement for all employees or contractors seek ing to obtain the new form of identification. The PIV standard mandates that "only an individual with a back ground investigation on record is issued a credential." The PIV standard further specifies that the background investigation required for federal employment will be a "National Agency Check with Inquires," or its equiva lent.

On May 24, 2007, NASA incorporated the above-men tioned requirements through a NASA Interim Directive, NPR 1600.1 ("NASA Directive"), that established a new "agency-wide policy for the creation and issuance of fed eral credentials at NASA." The NASA Directive states that it is being implemented in compliance with HSPD- 12 and the PIV standard established by the DOC.

After the NASA Directive was established, JPL per sonnel were informed that they would have to submit to a background investigation, the extent of which would be determined by their position's risk level. The back ground investigation is a prerequisite to receiving the required PIV badge.

For "low risk" employees, such as all plaintiffs in this case, the investigation begins with completion of Stan dard Form 85 ("SF-85"), a questionnaire for non-sensi tive positions. SF-85 requires various types of back ground information to which Plaintiffs do not object, such as name, date of birth, place of birth, social security number, etc. The form also requires information about employment and residential history for the past five years, educational history starting with high school, the names of three individuals who know the applicant well, and a statement as to whether the applicant has used il legal drugs in the past year.

Applicants are also required to sign, as part of SF- 85, an "Authorization for Release of Information," which authorizes the agency to collect "any information relat ing to my activities from schools, residential manage ment agents, employers, criminal justice agencies, retail business establishments, or other sources of informa tion." See SF-85 at p.6. Plaintiffs argue that the lan guage in the waiver is overly broad considering the "low risk" nature of their jobs.

After the waiver is signed, written inquires are then made to educational institutions, former employers, landlords, and references. These inquires are used to verify the applicant's historical information. Plaintiffs allege that the landlords, past employers, etc. are also asked to report any adverse information they have on the plaintiff with respect to "abuse of alcohol or drugs," "financial integrity," "mental or emotional stability," "general behavior or conduct," and "other matters."

The NASA Directive states that if the investigation process yields any "derogatory or unfavorable informa tion," it will be forwarded to the Human Resources Offi cer for JPL, who will determine "employment suitabil ity." JPL has allegedly posted on an internal website the various grounds upon which "employment suitabil ity" will be determined. The grounds allegedly include "infrequent, irregular but deliberate delinquency in meeting financial obligations," "pattern of irresponsibil ity as reflected in . . . credit history," "sexual miscon duct with impact on job," "sodomy," "attitude," "person ality conflict," "absenteeism or attendance problems," "homosexuality," "judgment, reliability and dependabil ity issues," "physical health issues," "mental, emotional, psychological or psychiatric issues," "issues . . . that relate to an associate of the person under investigation," and "issues . . . that relate to a relative of the person under investigation."10

Plaintiffs allege that they have been informed at pub lic meetings and by JPL senior administrators that if they do not have their PIV badge by October 27, 2007, they will be barred from the JPL premises and will be deemed to have terminated their employment with JPL. Plaintiffs have until October 5, 2007 to fill out SF-85 and other required documents in order to be eligible to re ceive their PIV badge by October 27, 2007. Because of this, Plaintiffs allege that they will suffer irreparable harm. Accordingly, Plaintiffs have filed the instant mo tion for preliminary injunction.

III. DISCUSSION

A. Legal Standard-Preliminary Injunction

In deciding whether to issue a preliminary injunc tion, a court must balance the plaintiffs' likelihood of success against the relative hardship to the parties. Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir. 1999). A court may appropriately issue a prelimi nary injunction where the "plaintiffs demonstrate ei ther: (l) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious ques tions going to the merits were raised and the balance of hardships tips sharply in [their] favor." S.W. Voter Reg istration Educ. Project v. Shelley, 344 F.3d 914, 917 (9th Cir. 2003) (en banc) (internal quotation marks omitted). "These two alternatives represent 'extremes of a single continuum,' rather than two separate tests." Clear Channel Outdoor Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir. 2003) (quoting Walczak, 198 F.3d at 731). "Thus, the greater the relative hardship to the party seeking the preliminary injunction, the less probability of success must be established by the party." Beardslee v. Woodford, 395 F.3d 1064, 1067 (9th Cir. 2005).

The district court must also consider whether the public interest favors issuance of the injunction. Id. "This alternative test for injunctive relief has been for mulated as follows: a plaintiff is required to establish '(1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if prelimi

nary relief is not granted, (3) a balance of hardships fa voring the plaintiff, and (4) advancement of the public interest (in certain cases).'" Shelley, 344 F.3d at 917-18 (quoting Johnson v. Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995)).

17.

B. Analysis

1. Standing and Ripeness

"Article III of the [U.S.] Constitution confines the federal courts to adjudicating actual 'cases' and 'contro versies.'" Allen v. Wright, 468 U.S. 737, 750 (1984). "In order to ensure that a federal court's Article III power has been properly invoked, the courts have developed several doctrines, including standing, mootness, and ripeness, each of which imposes a different requirement on the substance of a plaintiffs claim." Lee v. State of Or., 107 F.3d 1382, 1387 (9th Cir. 1997) (citing Allen, 468 U.S. at 750). These doctrines present threshold ques tions pertaining to federal court jurisdiction. Thus, "[b]efore the judicial process may be invoked, a plaintiff must show that the facts alleged present the court with a case or controversy in the constitutional sense and that [they are] proper plaintiff[s] to raise the issues sought to be litigated." Olagues v. Russoniello, 770 F.2d 791,796 (9th Cir. 1985) (citations omitted). We are par ticularly concerned in this case with standing and ripe ness.

To establish standing, a plaintiff must demonstrate that he has suffered an "injury in fact"-"an invasion of a legally protected interest" that is both "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). "Whether a dispute is ripe depends on 'the fitness of the issues for judicial decision' and 'the hardship to the parties' of withholding review." Hotel Employees and Rest. Employees Int'l Union v. Nev. Gaming Comm'n, 984 F.2d 1507, 1512-13 (9th Cir. 1993) (quoting Abbott Lab. v. Gardner, 387 U.S. 136, 149 (1967) (abrogated on other grounds)). Plaintiffs bear the burden of alleging the facts necessary to establish standing and ripeness. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990).

Here, it is first necessary to determine the alleged cause of Plaintiffs' injury or potential injury. It is the "cause" of potential injury or injuries that initially ap pears intertwined and confusing. However, for the sake of clarity, the Court separates Plaintiffs' grievance into two parts. First, Plaintiffs argue that SF-85 is overly broad and intrusive considering the "low-risk" nature of their jobs at JPL. Second, Plaintiffs argue that JPL's internal policy, which lists various grounds upon which an employee can be determined unsuitable for employ ment, is unconstitutional. The Court feels that by sepa rating Plaintiffs' allegations into these two distinct is sues, the standing and ripeness issues can be better an alyzed.

First, dealing with the SF-85 argument alone, it ap pears that Plaintiffs have standing and their allegations regarding SF-85 are ripe for review. "Where only in junctive or declaratory relief is sought, a plaintiff must show 'a very significant possibility' of future harm in order to have standing to bring suit." Coral Const. Co. v. King County, 941 F.2d 910, 929 (9th Cir. 1991) (quot ing Nelsen v. King County, 895 F.2d 1248, 1250 (9th Cir. 1990). "The complainant must allege an injury to him self that is distinct and palpable, as opposed to merely abstract, and the alleged harm must be actual or immi nent, not conjectural or hypothetical." Whitmore v. Ark., 495 U.S. 149, 155 (1990) (citations omitted). Here, it is undisputed that if Plaintiffs do not sign the SF-85 waiver by October 5, 2007 they will not receive their identification badges. Without their badges they will not have access to the JPL premises and will thus be deemed to have voluntarily resigned. It appears that this is a concrete injury that is imminent and not hypo thetical.

Second, the Court looks to Plaintiffs' attack on JPL's internal policy that explains when someone is "unsuit able" for employment. It is clear that this "policy" has not caused an "injury in fact." There is also not an im minent injury. It is strictly speculative to allege that JPL's "policy" will ever come into play. In addition, there have been no facts to show that the "policy" is truly a JPL policy or just a list found on JPL's internal website. Accordingly, the Court finds that Plaintiffs do not have standing to attack this alleged policy. And the policy itself is also not ripe for review. Therefore, to streamline this case, the Court will only focus on SF-85 and whether the government is justified in requiring Plaintiffs to sign the form.

2. Likelihood of Success on the Merits

a. Plaintiffs' Fourth Amendment Claim

Plaintiffs' contention is that the SF-85 form and waiver required by NASA are unreasonable searches in violation of the Fourth Amendment. The Fourth Amendment protects the "right of the people to be se cure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . ."

The Court agrees with Defendants' argument that the Fourth Amendment has never applied to back ground checks. And, if the Fourth Amendment does apply to this case, Plaintiffs have not shown how. Plain tiffs rely on cases addressing whether the search of an employee's body and seizure of bodily fluids through a drug testing constitutes an unreasonable search and seizure. Plaintiffs make no argument that a question naire, background check, or authorization to release records constitutes a "search." Plaintiffs bear the bur den to demonstrate that a search or seizure has oc curred, that they have a "reasonable expectation of pri vacy" in the information being sought, and that the ex pectation of privacy is "protectable" in this specific in stance. In short, Plaintiffs have not shown the Court how the Fourth Amendment applies.

In addition, even if Plaintiffs were able to show that a background check invokes the Fourth Amendment, the Supreme Court has noted that "we have never held that potential, as opposed to actual, invasions of privacy con stitute searches for purposes of the Fourth Amend ment." U.S. v. Karo, 468 U.S. 705, 712 (1984). Here, there has not been an actual invasion of privacy, but only a potential invasion since the government has not yet checked any of the Plaintiffs' backgrounds. Therefore, there is not a likelihood that Plaintiffs' Fourth Amend ment claim will succeed on the merits.

b. Plaintiffs' Fourteenth Amendment Claim

Plaintiffs' second claim alleges a "[v]iolation of U.S. Constitution, Fourteenth Amendment." See Compl, ¶ 19. However, the Fourteenth Amendment applies only to the states, not the federal government. See U.S. Const. amend. XIV, § 1 (". . . nor shall any State de prive any person of life, liberty, or property, without due process of law."); see also Bolling v. Sharpe, 347 U.S. 497, 499 (1954) ("[the] Fourteenth Amendment . . . applies only to the states."). Here, Plaintiffs allege no conduct by any state or state agency, and they present no argument that the Fourteenth Amendment should apply to the federal government, a federal agency, or a private entity acting pursuant to a federal directive. Plaintiffs concede in their Joint Reply that the Four teenth Amendment does not apply to the federal govern ment. See Joint Reply at p.7. Accordingly, Plaintiffs are unlikely to succeed on the merits of their Fourteenth Amendment claim.

c. Plaintiffs' Claim that Defendants' Privacy Waiver and Background Investigation Policies Violate the Administrative Procedure Act

The Administrative Procedure Act ("APA") requires courts to "hold unlawful and set aside agency action found to be . . . not in accordance with law." 5 U.S.C. § 706(2)(c). In this case, Plaintiffs argue that the DOC and NASA acted as lawmakers by creating a mandate that federal contractors must submit to an extensive background check in order to gain access to federal fa cilities. Specifically, Plaintiffs argue that HSPD-12 it self contains no directive or policy regarding a back ground investigation, but is concerned only with the es tablishment of a "Federal standard for secure and reli able forms of identification." HSPD-12(2).

Defendants argue that the central purpose of HSPD- 12 is to "enhance security" and, in so doing, HSPD-12 granted DOC the discretion to determine the "sound criteria" agencies must use to verify employee and con tractor identity. Accordingly, Defendants argue HSPD- 12 necessarily authorizes some level of investigation and evaluation of the individual's background.

In addition, Defendants argue that Plaintiffs ignore the fact that NASA has the power to require back ground investigations via the National Aeronautics and Space Act of 1958 ("Space Act"). The Space Act states:

The Administrator shall establish such security re quirements, restrictions, and safeguards as he deems necessary in the interest of the national security. The Administrator may arrange with the Director of the Office of Personnel Management for the conduct of such security or other personnel investigations of the Administration's officers, employees, and consul tants, and its contractors and subcontractors and their officers and employees, actual or prospective, as he deems appropriate; and if any such investiga tion develops any data reflecting that the individual who is the subject thereof is of questionable loyalty the matter shall be referred to the Federal Bureau of Investigation for the conduct of a full field investi gation, the results of which shall be furnished to the Administrator.

42 U.S.C. § 2455(a). The language of the Space Act clearly gives NASA the authority to implement back ground investigations as part of the security screening of contractors. Therefore, it appears that Plaintiffs are unlikely to succeed on the merits of their APA claim.

 

 

d. Claim that Defendants' Policies Violate the Privacy Act

Plaintiffs claim that Defendants' policy directly vio lates several sections of the Privacy Act of 1974, codified at 5 U.S.C. § 552a(a)-(q). The Privacy Act requires that a federal agency "maintain in its records only such information about an individual as is relevant and neces sary to accomplish a purpose of the agency." 5 U.S.C. § 552a(e)(l). In addition to "maintaining" information, the Act's "legislative history also reveals a concern for unwarranted collection of information as a distinct harm in and of itself." Albright v. U.S., 631 F.2d 915, 919 (D.C. Cir. 1980). Here, however, SF-85 specifically states that it complies with the Privacy Act. See SF-85 at p.2. Thus, until such time Plaintiffs can show that information collected via SF-85 was not properly main tained or gathered, the Court will give deference to an Executive Branch agency's assurance that its SF-85 complies with the Privacy Act.

Further, even if Plaintiffs might have a meritorious claim under the Privacy Act after the information is col lected, the Ninth Circuit has noted that Congress did not intend to authorize the issuance of injunctions when dealing with certain sections of the Privacy Act. Cell Assocs., Inc. v. Nat'l Insts. of Health, Dept. of Health, Ed. and Welfare, 579 F.2d 1155, 1059 (9th Cir. 1978). Here, it appears that Plaintiffs are seeking a civil remedy under 5 U.S.C. §§ 552a(g)(1)(C) and/or 552a(g)(l)(D), which, as the Ninth Circuit has noted, do not provide for injunctive relief. Id. Therefore, while Plaintiffs' Privacy Act claim might have merit at a later time, it is not ripe for purposes of a preliminary injunc tion.

e. Informational Privacy

It appears that Plaintiffs' best claim is one for "in formational privacy." While Plaintiffs have not specifi cally alleged "informational privacy" in their Complaint, they have given the allegation great weight in their pa pers that support their instant motion. Plaintiffs cite to Fed. Rule Civ. Pro. 8(f), which provides that "all plead ings shall be so construed as to do substantial justice." Thus, even though it is not clearly pled, the Court will entertain Plaintiffs' "informational privacy" claim here.

"While the Supreme Court has expressed uncer tainty regarding the precise bounds of the constitutional 'zone of privacy,' its existence is firmly established." In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999) (cit ing Whalen v. Roe, 429 U.S. 589, 599-600 (1977) and Griswold v. Conn., 381 U.S. 479, 483 (1965)). The Ninth Circuit has "observed that the relevant Supreme Court precedents delineate at least two distinct kinds of constitutionally-protected privacy interests: 'One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.'" Id. (quo ting Doe v. Attorney Gen., 941 F.2d 780, 795 (9th Cir. 1991)).

It is clear that Ninth Circuit precedent supports Plaintiffs' claim for informational privacy, thus, the question before the Court is whether Plaintiffs are likely to succeed with this claim on the merits. "The right to informational privacy, however, 'is not absolute; rather, it is a conditional right which may be infringed upon a showing of proper governmental interest.'" Id. at 959 (quoting Doe v. Attorney Gen., 941 F.2d at 796). "Our precedents demand that we 'engage in the delicate task of weighing competing interests' to determine whether the government may properly disclose private informa tion." Id. (quoting Doe v. Attorney Gen., 941 F.2d at 796). Relevant factors to be considered include:

. . . the type of record requested, the information it does or might contain, the potential for harm in any subsequent nonconsensual disclosure, the injury from disclosure to the relationship in which the re cord 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. (citing Doe v. Attorney Gen., 941 F.2d at 796). "This list is not exhaustive, and the relevant considerations will necessarily vary from case to case." Id. "In each case, however, the government has the burden of show ing that its use of the information would advance a legit imate state interest and that its actions are narrowly tailored to meet the legitimate interest." Id. (citing Doe v. Attorney Gen., 941 F.2d at 796). "In most cases, it will be the overall context, rather than the particular item of information, that will dictate the tipping of the scales." Id.

Here, the information requested is set forth in SF-85. SF-85 requires various background information to which Plaintiffs do not object, such as name, date of birth, place of birth, social security number, etc. The form also requires information about employment and residential history for the past five years, educational history starting with high school, the names of three individuals who know the applicant well, and a statement as to whether the applicant has used illegal drugs in the past year.

A specific portion of SF-85 that the Court was ini tially troubled by was the illegal drug use question. However, the government has safeguarded Plaintiffs' Fifth Amendment rights by noting that an applicant's response to the drug use question will not be used against the applicant in any subsequent criminal pro ceeding. See SF-85 question 14. The government's in structions to SF-85 also state that "[g]iving us the infor mation we ask for is voluntary." See SF-85 at p. 1. Therefore, the Court's analysis as to the first part of SF-85 tips in favor of the government, because the ques tionnaire itself is relatively non-intrusive. And, there are adequate safeguards in place when dealing with sen sitive questions.

The second part of Plaintiffs' argument pertains to page six of SF-85, which contains the "Authorization for Release of Information." Plaintiffs argue that the lan guage contained in the release is overly broad. Plaintiffs specifically object to the following language that the Court has italicized:

I [a]uthorize any investigator, special agent, or other duly accredited representative of the authorized Federal agency conducting my background investi gation, to obtain any information relating to my ac tivities from schools, residential management agents, employers, criminal justice agencies, retail business establishments, or other sources of information. This information may include, but is not limited to, my academic, residential, achievement, performance, attendance, disciplinary, employment history, and criminal history record information.

When analyzing the language of the release, it is nec essary to apply the test from Crawford, which states that "the government has the burden of showing that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet the legitimate interest." Crawford, 194 F.3d at 958. Here, the government has shown that it has an in terest in "enhancing security" at federal facilities. The Court concludes that this is a legitimate governmental interest. Further, Defendants have declared that a "procedure whereby the government attempts to verify the correctness of the information entered onto the form substantially improves the probability of detecting indi viduals claiming a false identity." Federal Defendants' Opp'n at 6. Verifying the identity of federal contractors is also a legitimate interest.

The Court must now determine whether the govern ment's actions are narrowly tailored to meet the legiti mate interest. The Court is persuaded by the govern ment's position that "[k]nowing the name of an individ ual does nothing to enhance security unless the agency also verifies that the individual is not connected to activ ity that poses a security threat." Federal Defendants' Opp'n at 12. Thus, the language in the release referring to "other sources of information" is justified because it allows the government some leeway in conducting its investigation. Indeed, the government notes that the re lease "must allow the investigators some flexibility to follow up on relevant needs." The Court agrees.

There are also safeguards in place on the face of the release that support the notion that the release is nar rowly tailored. The release states: "for some sources of information, a separate release will be needed." This language shows that the release does not cover all sourc es of information. The Court also reiterates that any potential information that might be uncovered as a re sult of the release is not relevant to the Court's analysis, because hypothetical harms are not ripe for review. Therefore, the Court finds, for purposes of this Order only, that the government's actions are narrowly tai lored to meet its legitimate interest.

Plaintiffs also emphasize that the authorization form is overly broad as applied to each of the plaintiffs, be cause they are "low risk" contractors. However, the Court disagrees with this contention. The release itself is a standard SF-85. It does not seek extensive or overly-sensitive information. The Court also notes that NASA and its facilities require a relatively secure envi ronment. And, while the Court concedes that JPL is not the Central Intelligence Agency, there are still very high-tech and sensitive devices at JPL, such as satellite monitoring equipment, that warrant strict security mea sures. Plaintiffs' argument that JPL's security has been lax up until now is unpersuasive. Accordingly, the evi dence presented by Plaintiffs does not show a likelihood of success on the merits with regard to their informa tional privacy claim.

3. Possibility of Irreparable Injury to Plaintiffs

Plaintiffs argue that if a preliminary injunction is not granted, they will either have to comply with the new security measures or risk losing their jobs. Of course losing one's job and livelihood is a great harm. How ever, "[t]he key word in this consideration is irrepara ble. . . . The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm." L.A. Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1201 (9th Cir. 1980) (emphasis added). As Defendants point out, any temporary denial of access to JPL does not amount to irreparable harm. Notably, there is an ap peals process incorporated into the new security check process where applicants who are denied badges can seek redress from a three-person appeals panel. See Exhibit P in support of Plaintiffs' Motion at p. 19. If Plaintiffs were to succeed by way of the appeals panel, their access could then be restored, and Plaintiffs could resume working at the facility. Thus, this Court does not provide the only remedy available to Plaintiffs.

The other possible injury that Plaintiffs allege per tains to having to give out their private information. However, unlike other cases in the area of informational privacy, Plaintiffs here are not literally disclosing pri vate information, aside from the illegal drug question discussed above. By filling out SF-85, Plaintiffs are simply giving authorization for the government to per form a background investigation. And at this point the Court is only looking at a facial challenge to SF-85. Anything that might arise after an employee signs the authorization form is purely speculative and not ripe for review. Therefore, the argument that Plaintiffs will suf fer irreparable harm by signing an authorization form is without merit.

IV. CONCLUSION

For the forgoing reasons, the Court finds that Plain tiffs have not shown either a likelihood of success on the merits or irreparable injury. Therefore, Plaintiffs' Mo tion for Preliminary Injunction is DENIED.

 

DATED: Oct. 3, 2007

 

/s/ OTIS D. WRIGHT

HON. OTIS D. WRIGHT II

United States District Judge

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

18. APPENDIX E

19.

20. UNITED STATES COURT OF APPEALS

21. FOR THE NINTH CIRCUIT

 

 

 

 

No. 07-56424

ROBERT M. NELSON; ET AL., PLAINTIFFS-APPELLANTS

v.

NATIONAL AERONAUTICS AND SPACE

ADMINISTRATION, AN AGENCY OF THE UNITED STATES, ET AL., DEFENDANTS-APPELLEES

 

 

 

 

June 4, 2009

 

 

 

 

ORDER

 

 

 

 

Before: DAVID R. THOMPSON and KIM MCLANE WARD LAW, Circuit Judges, and EDWARD C. REED, JR.,11 Dis trict Judge.

Order; Concurrence by Judge WARDLAW; Dissent by Judge CALLAHAN; Dissent by Judge KLEINFELD; Dis sent by Chief Judge KOZINSKI.

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 rehear ing 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 impor tance, the active judges of our court, in a vote that was not close,12 denied rehearing of this case en banc. I con cur.

This is an interlocutory appeal from the denial of a preliminary injunction sought by a class13 of long-term California Institute of Technology (_Caltech_) employ ees, including scientists, engineers, and administrative support personnel-all classified by the National Aero nautics and Space Administration (_NASA_) as low risk employees.14 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 ob jected to the new requirement as _inappropriate._ Re versing the district court's denial of the preliminary in junction, we concluded that, as to the constitutional right of privacy claim,15 _serious questions going to the merits were raised and the balance of harms tips sharp ly in [the plaintiff-class's] favor,_ Walczak v. EPL Pro long, Inc., 198 F.3d 725, 731 (9th Cir. 1999),16 where the class faced the Hobson's choice of losing their jobs or submitting to an unprecedented intrusion into their pri vate 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 inter est in aiding the struggling local economy and prevent ing job loss,_ The Lands Council v. McNair, 537 F.3d 981, 1005 (9th Cir. 2008) (en banc).17 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 hold ing. 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 chal lenge 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 representa tion, the newly proposed investigation is not limited to information _voluntarily turn[ed] over to third parties._18 Some of the information sought from neighbors, land lords, employment supervisors, and the like includes pri vate sexual practices, sexual orientation, and physical and psychological health issues, and the government does not ask sources to limit their answers only to infor mation 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 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 vio lates 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 aspects19 of the government inquiries in the challenged Standard Form 85 (_SF 85_) questionnaire and Investigative Re quest for Personal Information (_Form 42_) raised seri ous informational privacy concerns. Nelson II, 530 F.3d at 879-81. After engaging in the requisite delicate bal ancing, we reasoned that although the government as serted 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 op posed to drug use. Id. We reversed the district court only to the extent that the government sought disclo sure of _any treatment or counseling received_ at any time for drug problems, id. at 879, and planned to en gage 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 pri vate information the government now seeks and the po tential uses for this information. The newly instated NASA Procedural Requirements incorporate the Per sonal Identity Verification (_PIV_) standard promul gated by the Department of Commerce under Homeland Security Presidential Directive 12 (_HSPD-12_).20 These requirements mandate that every JPL contract em ployee 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 informa tion through Form 42.21 Id. at 871. Once the informa tion has been collected, NASA determines whether an employee is _suitable_ for continued access to its facili ties. See 5 C.F.R. § 731.103(a) (_[The U.S. Office of Per sonnel Management] delegates to the heads of agencies authority for making suitability determinations and tak ing suitability actions._). Because Caltech established a policy that JPL employees who fail to obtain new identi fication 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 Cal lahan's statement that the government inquiry in Form 42 is limited in any way to information that class mem bers _voluntarily turn over to third parties._ The record demonstrates the contrary: the Authorization for Re lease of Information authorizes any investigator con ducting 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 re cipient 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, 530 F.3d at 881. Judge Kleinfeld also belabors the usefulness of open- ended questions when an employer interviews a poten tial 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; reasonable 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 proce dures, class members specifically asked about the inves tigation's scope and the criteria analyzed to make the suitability determination. The program directors re fused to answer questions about scope and criteria. The only information class members were able to glean about the proposed use of SF 85 and Form 42 and the suitabil ity 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,_ _physical health issues,_ and _mental, emotion al, psychological or psychiatric issues_ as suitability is sues. The Issue Characterization Chart further indi cates 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 present of possible susceptibility to coercion or blackmail_ (empha sis added). Far from the minimally intrusive questions to former employers and named references that Judges Callahan and Kleinfeld portray, the record shows the very real potential for intrusions into undisclosed pri vate sexual, financial, 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 secu rity of federal facilities is implicated by enjoining the government from a limitless investigation into the class members' private lives. In a similar vein, Judge Klein feld suggests that our opinion _enjoin[ed] reasonable reference checks on applicants for federal government functions_ in a manner _likely to impair national secur ity._ In addition to the fact that this accusation again mistakenly focuses on applicants, whereas our opinion addressed existing employees, Judge Kleinfeld's and Judge Callahan's claims are simply unsupportable. Our opinion 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 questions. The government is obviously free to continue reasonable reference checks, and is even free to utilize Form 42 when the government's le gitimate 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 appropri ately 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 Klein feld suggests. Nor does it affect the government's abil ity to confirm identity, take fingerprints, run criminal records checks, or compel individuals to disclose prior drug use. It preliminarily enjoins the government only from compelling the disclosure of any and all drug coun seling and treatment information and from investigating without limits into areas of class members' lives unre lated to employment.

Judge Kleinfeld's complaint that we failed to con sider 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 nonsensitive 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,22 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 nev er 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 Caltech, is not a vulnerable facility desperately in need of stronger security measures. JPL is located ap proximately 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 sci entists (often foreign nationals), and other members of the public to enter and tour the facilities. JPL regularly opens its doors to all members of the public. Tens of thousands 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 campus while their identity is veri fied by presentation of a driver'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 hand bags.

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 secu rity 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 ac tivities to be peer-reviewed and independently validated. They are not affected by the issuance of new identifica tion badges.

While the preliminary injunction remains in effect, the public 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 government found sufficient to safe guard our national space effort up until two years ago when it first decided to impose its proposed limitless inquiry. A temporary restriction against a standardless investigation of employment-irrelevant data will have little to no impact on JPL, in part because of the secu rity measures already in effect.

JPL currently uses secure and reliable forms of iden tification that comply with HSPD-12. HSPD-12 defines _secure and reliable forms of identification_ as identifi cation that _(a) is issued based on sound criteria for veri fying an individual employee's identity; (b) is strongly resistant to identity fraud, tampering, counterfeiting, and terrorist exploitation; (c) can be rapidly authenti cated electronically; and (d) is issued only by providers whose reliability has been established by an official ac creditation 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 personal information, two forms of approved identification, and fingerprinting. The class does not challenge uniform identification 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 sci entist had _carnal knowledge,_ a personality conflict, or used abusive language at home would not impact our na tional security. Put another way, the dissenters (other than Judge Kozinski) seem to be suggesting that the government has an unlimited right to violate 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 government 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 significant 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 cir cuits, National Treasury Employees Union v. U.S. De partment of Treasury, 25 F.3d 237 (5th Cir. 1994), and American Federation of Government Employees v. De partment 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 posi tions-positions not held by the low risk contract em ployees here.

In National Treasury, the Fifth Circuit recognized the constitutional right to privacy, stating that _[t]he extent to which an individual's expectation of privacy in the employment context is reasonable depends, in signif icant 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 positions 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 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 private citizens._ Id.

In American Federation, the D.C. Circuit also con sidered informational privacy in the context of public trust employees. 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. Cir cuit analyzed each of the challenged questions, 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 employees. The class expressly excludes employ ees 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 clear ances-precisely because they desired that their work remain in the public domain. Avoiding classified materi als 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 priva cy interest is whether the information collected by the government is disseminated publicly, Nat'l Treasury, 25 F.3d at 244; Am. Fed'n, 118 F.3d at 793, neither one found that to be the dispositive factor. Each court held that constitutional interests were not violated because the protections against the disclosure of private infor mation were combined with other important factors, 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 al so recognizes that _[a]lthough the risk of public disclo sure 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 infor mation will be disclosed to Caltech, raising serious ques tions as to whether their privacy interest is diminished by this factor.

Finally, both National Treasury and American Fed eration 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' deci sions. For example, after the district court held that an authorization similar to that in SF 85 violated the plain tiffs' constitutional right to informational privacy in American Federation, the D.C. Circuit reversed based on a government representation _that the legitimate use of the release form is limited to verifying information solicited by other parts of the form,_ and a finding that _the release authorizes the government to collect only information _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 _stead fastly refused to provide any standards narrowly tailor ing the investigation to the legitimate 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 number of considerations to be taken into account in shaping the right of informational privacy. By asking a series of provocative questions about the doctrine, how ever, he only underscores our panel's conclusions that serious questions were raised justifying the preliminary injunction. See Walczak, 198 F.3d at 731. Ultimately, I disagree with his conclusion that we should have taken this case en banc to provide further guideposts 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 Treasury or American Federation, will allow us to thor oughly consider the nature of the privacy rights at issue and provide the clarity Judge Kozinski seeks.

We recognized in our opinion the distinction Judge Kozinski proposes between government collection and disclosure of information. As previously noted, we sta ted that _[a]lthough the risk of public disclosure is un doubtedly 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). It is not yet clear on this record, however, whether the govern ment 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 an other 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 informa tion is shared, Caltech is not precluded by the Privacy Act from further disseminating it.

Judge Kozinski also distinguishes between disclo sures that the target may refuse and those imposed re gardless of his consent. I agree that during the applica tion process for a new job, disclosures may be refused simply by seeking other employment. 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 practical matter, given the current economic environ ment, the unique nature of the work conducted at JPL, and the age and 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 pre cisely with further record development. It appears, al though it has yet to be conclusively proven, that the gov ernment intends to pry into constitutionally protected private matters. The Issue Characterization Chart sug gests that sexual preference, sexual activity, medical treatment, counseling, and personal financial matters are at issue in the government's investigation. The Su preme Court has recognized a constitutional _interest in avoiding disclosure of personal matters,_ Whalen v. Roe, 429 U.S. 589, 591-93, 97 S. Ct. 869, 51 L. Ed. 2d 64 (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 whe ther 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 constitutionally protected interest in the confidentiality of personal fi nancial information._); Norman-Bloodsaw, 135 F.3d at 1269 (_The constitutionally protected privacy interest in avoiding disclosure of personal matters clearly encom passes medical information and its confidentiality._); Eastwood v. Dep't of Corr., 846 F.2d 627, 631 (10th Cir. 1988) (_This constitutionally protected right [to privacy] is implicated when an individual is forced to disclose information regarding personal sexual matters._); Thorne, 726 F.2d at 468 (_The interest [the plaintiff] raises in the privacy of her sexual activities are within the zone protected by the constitution._).23

Similarly, the parties have yet to develop an eviden tiary 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 re lease to obtain medical records. However, the Authori zation for Release of Information allows the government _to obtain any information relating 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 suggests 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 de termine whether the government is in fact acting as any other _private_ employer. By unilaterally imposing the new requirements upon Caltech in the interest of secur ing federal facilities, the government is using special powers that are available to it only in its sovereign ca pacity. Private contracting 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 determi nation, but again, the class has not yet had the opportu nity 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 informational privacy with some of Judge Kozinski's questions actually answered. There fore, I concur in the denial of en banc rehearing, and await the next round.

 

CALLAHAN, Circuit Judge, with whom KLEINFELD, TALLMAN and BEA, Circuit Judges, join, dissenting from the denial of rehearing en banc:

This case places before the court an issue of excep tional 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 Laboratory (_JPL_) is the foremost leader in exploring the solar system's known planets with robotic spacecraft. As the lead center for NASA's deep space robotics and deep space communications missions, the science and technology developed at JPL for each mis sion entails extensive planning, research, and develop ment, spanning years and costing taxpayers hundreds of millions of dollars. The technology developed at JPL features some of the most sensitive and expensive equip ment owned by NASA, which involves a myriad of scien tific, medical, industrial, commercial, and military uses.

Plaintiffs, twenty-eight scientists and engineers em ployed as contractors at JPL, object to NASA's require ment that they undergo the same personnel investiga tion for non-sensitive contract employees as those al ready in existence for all civil service employees in non-sensitive positions. Although the district court de nied a motion for a preliminary injunction designed to prevent these personnel investigations from taking 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 counseling received for illegal drug use within the past year and a related written inquiry sent to references implicate the constitutional right to infor mational privacy. See id. at 879. Applying 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 government's legitimate interests related to the security of JPL. Id. at 879-81.

I dissent from the denial of rehearing en banc be cause the panel's opinion constitutes an unprecedented expansion of the constitutional right to informational privacy. Further, assuming that the panel's opinion cor rectly assesses the scope of this right, it does not prop erly apply intermediate scrutiny. This expansion of con stitutional privacy rights reaches well beyond this case and may undermine personnel background investiga tions performed daily by federal, state, and local govern ments.

Until now, no court had held that applicants have a constitutionally protected right to privacy in information disclosed by employment references. The Supreme Court has consistently held that individuals do not have a legitimate expectation of privacy in information they voluntarily turn over to third parties. See, e.g., Smith v. Maryland, 442 U.S. 735, 743-44, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); United States v. Miller, 425 U.S. 435, 442-44, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976). Similarly, no court had previously held that a government em ployee has a constitutionally protected right to privacy to prevent the disclosure of treatment or counseling re ceived 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 can not violate constitutional right to informational privacy). Thus, the panel's opinion effects an unwarranted exten sion of the constitutional right to informational privacy.

Even assuming that a constitutional right to informa tion privacy is implicated here, the panel fails to engage in the requisite _delicate balancing_ of plaintiffs' privacy rights and NASA's legitimate need for information en suring 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 of which have rejected privacy-based challenges to background 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 Em ployees Union v. U.S. Dep't of Treasury, 25 F.3d 237 (5th Cir. 1994). These circuits emphasized that the in formation to be disclosed to the government in those cases would not be disclosed to the public; indeed, the D.C. Circuit recognized that even if a constitutional right to informational privacy is implicated, the Privacy Act, 5 U.S.C. § 552a(b), adequately safeguards against public disclosure.

I. Factual Background

A. Work conducted at the JPL facilities

JPL is a NASA facility that the California Institute of Technology (_Caltech_) operates pursuant to a con tract 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 communica tions missions, which require broad access to many NASA physical and logical facilities. These missions en tail _extensive and detailed parallel planning, research, and development, often spanning years, scores of per sons, and hundreds of millions of taxpayer dollars._ JPL's discoveries have provided new insights into stud ies of the Earth, its atmosphere, climate, oceans, geol ogy, and the biosphere; created the most accurate topo graphic 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 profile projects includ ing the Phoenix Mars Lander Mission, the Mars Explo ration Rovers Mission, the Cassini Equinox Mission 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 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 numerous satellites and other space missions, and is involved in other highly confidential projects. All positions at JPL, from administrative sup port to engineers, scientists, and JPL's Director, are filled by contract employees.24 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 government set standards for the issuance of identification because identification fraud is a concern at _vulnerable facilities._ THE 9/11 COMMISSION RE PORT 390 (2004). On August 27, 2004, the President of the United States issued Homeland Security Presiden tial Directive 12 (_HSPD-12_) in response to security concerns identified by the 9/11 Commission Report and mandated that the Commerce Department develop a uniform federal standard, applicable to federal em ployees 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 Federal and other facilities where there is potential for terrorist at tacks. . . ._ HSPD-12 _ 1.

Acting pursuant to this directive, the Commerce De partment promulgated Federal Information Processing Standards (_FIPS_) 201 and 201-1, which required secu rity measures for contract employees commensurate with those applicable to comparable federal employees. FIPS 201-1 sets forth a standard for _identification is sued by Federal departments and agencies to Federal employees and contractors (including contractor em ployees) for gaining physical access to feder ally-controlled facilities and logical access to Federally controlled information systems._

Since 1953, federal civil service employees have been subject to mandatory background investigations, with the scope varying based on the potential for adverse security consequences associated with a particular posi tion. 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 Or der 10,450 has required that _in no event shall the inves tigation [of civil service employees] include less than a national agency check (including a check of the finger print files of the Federal Bureau of Investigation), and written inquiries to appropriate local law-enforcement agencies, 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 conducted an internal review of contractor security re quirements and concluded that the failure of contractors to undergo background 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,_ re vised NASA Procedural Requirement (_NPR_) 1600.1, to require application of security requirements for con tract 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 con tractors 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 compo nent facilities in executing the NASA security program to protect people, property, and information_ by estab lishing _security program standards and specifications necessary to achieve Agency-wide security program con sistency and uniformity._ NPR 1600.1, § P.1.

Meanwhile, on August 5, 2005, the Office of Manage ment and Budget (_OMB_) provided guidance on the implementation of HSPD-12, requiring agencies _devel op a plan and begin the required background investiga tions for all current contractors who do not have a suc cessfully adjudicated investigation on record . . . no later than October 27, 2007._ Memorandum from OMB on Implementation of Homeland Sec. Presidential Direc tive (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 identifica tion. 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 approxi mately 39,000 NASA contractors had completed the background investigation as of September 21, 2007.

C. The SF-85 Questionnaire and the Form 42 inquiries

The NACI requires the completion of a SF-85 Ques tionnaire, which asks the applicant to answer basic ques tions regarding citizenship, previous residences over the past five years, educational background, employ ment history over the past five years, selective service record, military history, and illegal drug use over the past year.25 The panel took issue with Question # 14, which asks:

In the last year, have you used, possessed, supplied, or manufactured illegal drugs? When used without a prescription, illegal drugs include marijuana, co caine, hashish, narcotics (opium, morphine, codeine, heroin, etc.), stimulants (cocaine, amphetamines, etc.), depressants (barbiturates, methaqualone, tran quilizers, etc.), hallucinogenics (LSD, PCP, etc.). (NOTE: Neither your truthful response nor infor mation derived from your response will be used as evidence against you in any subsequent criminal pro ceeding.)

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 educational institutions, former employers, land lords, and the designated references in order to verify the information on the SF-85 and confirm the applicant's trustworthiness and compliance with the law. Question # 7 on Form 42 asks references to indicate either _Yes_ or _No_ as to whether they _have any adverse informa tion about this person's employment, residence or activi ties concerning:_ _Violations of the Law,_ _Financial 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 government 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 annually. 70 Fed. Reg. 61,320 (Oct. 21, 2005).

D. Procedural History

Plaintiffs filed suit on August 30, 2007, and subse quently 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 investi gations, and that the NACI violated plaintiffs' informa tional privacy rights. The district court found that the NACI served a legitimate governmental interest, 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 district 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 brief ing schedule and argument, a merits panel held that the district court abused its discretion and reversed the de nial 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 con cludes that _the Space Act appears to grant NASA the statutory authority to require the [background] investi gations,_ 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 privacy. 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 pri vacy. Id. at 879-81. Accordingly, the panel concluded that _[t]he district court's denial of the preliminary in junction was based on errors of 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 ad dressed whether there is a constitutional right of pri vacy in the non-disclosure of personal information, see Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977); Whalen v. Roe, 429 U.S. 589, 605-06, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977), this circuit-along with a majority of other circuits-has found a limited right to informational privacy.26 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 _interest in independence in making certain kinds of important decisions._ Id. (citations omitted). _The right to informational privacy, however, is not absolute; ra ther, it is a conditional right which may be infringed upon a showing of proper governmental interest._ Id. at 959 (internal quotation marks and citation omitted). Where a constitutional right to informational privacy is implicated, we apply intermediate scrutiny, which re quires the government to show that _its use of the infor mation would advance a legitimate state interest and that its actions are narrowly tailored to meet the legiti mate interest._ Id. (internal quotation marks and cita tion omitted).

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 con stitutionally protected privacy interest in avoiding dis closure 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 privacy in revealing whe ther 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 privacy 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 Parent hood of S. Ariz. v. Lawall, 307 F.3d 783, 789-90 (9th Cir. 2002). We have also stated that questions during a poly graph 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 disclo sure of social security numbers out of a fear of identity theft. See In re Crawford, 194 F.3d at 958. Never be fore, 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 inquir ing into whether that employee has received drug treat ment within the past year or to prevent the government from sending a questionnaire to references in order to verify the veracity of the employee.

1. There is no expectation of privacy in information dis closed by a designated reference responding to a ques tionnaire

The panel's opinion concludes that individuals have a constitutionally protected right to privacy in informa tion disclosed to third-party employment references. No other court has held as much, and for good reason- the Supreme Court _consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties._ Smith, 442 U.S. at 743-44, 99 S. Ct. 2577 (citing Miller, 425 U.S. at 442-44, 96 S. Ct. 1619; Couch v. United States, 409 U.S. 322, 335-36, 93 S. Ct. 611, 34 L. Ed. 2d 548 (1973); United States v. White, 401 U.S. 745, 752, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971) (plurality opinion); Hoffa v. United States, 385 U.S. 293, 302, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966); Lopez v. United States, 373 U.S. 427, 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1963)); see also SEC v. O'Brien, 467 U.S. 735, 743, 104 S. Ct. 2720, 81 L. Ed. 2d 615 (1984) (same). For example, the Miller Court held that a bank depositor did not have an expectation of pri vacy in financial information that he voluntarily turned over to banks and their employees in the normal course of business. The Court explained:

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. This Court has held repeatedly that the Fourth Amendment does not pro hibit the obtaining of information revealed to a third party and conveyed by him to Government authori ties, even if the information is revealed on the as sumption 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, 96 S. Ct. 1619 (emphasis added and cita tions 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 reference.

The panel concludes that Fourth Amendment case law defining whether an individual has an expectation of privacy over information that he has already dissemi nated to the public is not the proper focus in the evalua tion of information privacy 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 constitutional right to informational privacy is not limited to Fourth Amendment searches, see, e.g., Thorne, 726 F.2d at 468 (questions during a polygraph to a police applicant), I disagree with the suggestion that whether an individual has an expectation of privacy under a constitutional right to informational privacy is not informed by Su preme Court case law interpreting an expectation of privacy under the Fourth Amendment. In fact, one of the Supreme Court's first decisions recognizing a consti tutional right to informational privacy specifically cited to Fourth Amendment case law in defining this right. See Nixon, 433 U.S. at 457-58, 97 S. Ct. 2777 (citing Katz v. United States, 389 U.S. 347, 351-53, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), in evaluating whether President Nixon had a legitimate expectation of privacy over presi dential 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 plan ted a set of _guideposts for responsible decisionmaking_ concerning limited fundamental rights _deeply rooted in this Nation's history and tradition_ in an attempt _to rein in the subjective elements that are necessarily pres ent in due-process judicial review._ Washington v. Glucksberg, 521 U.S. 702, 720-22, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997) (citations and quotation marks omitted). _[I]n addition to the specific freedoms pro tected by the Bill of Rights, the _liberty_ specially pro tected by the Due Process Clause includes the rights to marry, to have children, to direct the education and up bringing of one's children, to marital privacy, to use con traception, to bodily integrity, and to abortion._ Id. at 720, 117 S. Ct. 2258 (citations omitted); see also Thorne, 726 F.2d at 468 (stating that informational privacy claims must fall within the zone protected by the consti tution). _[E]stablishing a threshold requirement . . . avoids the need for complex balancing of competing in terests in every case._ Glucksberg, 521 U.S. at 722, 117 S. Ct. 2258. The panel's opinion expands the right to informational privacy by elevating personnel investiga tions to the realm of constitutional protection.

The panel's opinion opens the doors to lawsuits against employers who perform standard reference checks to ensure 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., 113 Cal. App. 4th 1363, 7 Cal. Rptr. 3d 216, 220-21 (Ct. App. 2003) (recog nizing that a California state statute extending a condi tional privilege against defamatory statements applies in the employment context), the panel's opinion will have the opposite effect.

The panel's opinion also fails to adhere to the Su preme Court's recent admonition that there is _a crucial difference, with respect to constitutional analysis, be tween the government exercising _the power to regulate or license, as lawmaker,_ and the government acting _as proprietor, to manage [its] internal operation.__ Eng quist v. Or. Dep't of Agric., - U.S. -, -, 128 S. Ct. 2146, 2151, 170 L. Ed. 2d 975 (2008) (quoting Cafeteria & Rest. Workers v. McElroy, 367 U.S. 886, 896, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (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 appro priate balance_ between employee rights and the govern ment's needs as an employer, courts should _consider whether the asserted employee right implicates the ba sic 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 al lows individuals to safeguard certain private informa tion-like the fact that they have had an abortion or have contracted AIDS-and ensures that those wishing to keep such information from the eyes and ears of oth ers can do so. However, those individuals that disclose such information to people like their landlords or em ployers lack any expectation that such information will be kept private. For this reason, plaintiffs have no expecta tion of privacy with respect to the Form 42 written in quiries.

2. There is no expectation of privacy for prior drug treat ment or counseling when seeking employment with the government

The panel's opinion recognizes that the constitutional right to informational privacy does not protect an appli cant from having to disclose to the government in a background investigation whether they have used, pos sessed, supplied, or manufactured illegal drugs within the past year. Nelson II, 530 F.3d at 878-79. Howev er, 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 treatment 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 psychological 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-respec tively deal with the _highly private 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 appli cant 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 pri vacy _depends, in part, upon society's established values and its expectations of its public servants, as reflected in our representative government._ 25 F.3d at 243. Ob serving that _[t]oday's society has made the bold and unequivocal statement that illegal substance abuse will not be tolerated,_ the court held that _[s]urely anyone who works for the government has a diminished expec tation that his drug and alcohol abuse history can be kept secret, given that he works for the very govern ment that has declared war on substance abuse._ Id. I see no principled distinction between an applicant hav ing to disclose that he has used illegal drugs and having to additionally 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 constitutional protec tion. Validly enacted drug laws put citizens on notice that this realm is not a private one._ 789 F.2d at 839 (ci tation omitted).

B. Even assuming that a constitutional right to privacy 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 implicate 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 facil ity. It also fails to appreciate the fact that NASA's ac tions are narrowly tailored because the Privacy Act pre vents public disclosure of this information.

1. Safety and security are legitimate state interests.

The panel's opinion acknowledges that NASA has a legitimate government interest in conducting back ground investigations. 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 maximum protection of NASA assets,_ NASA determined that the security re quirements for contractors should _be equitable with the employment suitability criteria for NASA Civil Service employees_ and _be uniformly and consistently applied._ Id. § 4.2.3.

The NACI has two components: the National Agen cy 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 gov ernment determined that this was insufficient to accom plish the security objectives of HSPD-12 because these database checks would detect only individuals whose fingerprints are on file at the FBI or individuals for whom there is a known history with law enforcement or other government agencies. Thus, the government de termined that a NACI was necessary because Form 42's written inquiries would help verify information on an employee'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 disincen tive to using false information 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 substan tially 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 unac ceptable risk to the safety and security of its costly equipment or its personnel. The work performed by the plaintiffs at JPL involves some of the most sensitive and important technology developed by NASA, and impli cates significant taxpayer money. Once individuals pass through one of the three main entrances, they have ac cess to most of the facility and, while they may not be able to enter areas where classified work is actually be ing done, they can travel unescorted to any building on JPL's campus. Also, a NASA identification badge will ordinarily give access to other NASA facilities, and de pending on other agencies' practices, access to other federal facilities. 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 informa tion 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 _deli cate 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 sub sequent nonconsensual disclosure, the injury from disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent un authorized disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable 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 constitutional 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 Government Employees, the D.C. Circuit held that, assuming a constitutional right to privacy even existed, the government _presented suffi ciently weighty interests in obtaining the information sought by the questionnaires to justify the intrusions in to their employees' privacy._ 118 F.3d at 793. The back ground investigations at issue included the more exten sive SF-85P Public Trust Positions and the SF-86 Sensi tive Questionnaires. Significantly, the D.C. Circuit held that _the individual interest in protecting the privacy of the information sought by the government is signifi cantly 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 constitutional right to privacy where the government has collected, but not disseminated, the information_).

The Fifth Circuit similarly found that the govern ment employees in that case had no reasonable expecta tion of privacy in keeping confidential the information requested in the SF-85P Questionnaire. See Nat'l Trea sury Employees Union, 25 F.3d at 244. The Fifth Cir cuit observed that the questionnaire requires the em ployees _only to disclose information to the [govern ment], as their employer-not to anyone else, and cer tainly not to the public._ Id.

The panel's opinion disregards the distinction be tween a privacy interest in avoiding collection of infor mation by the government and an interest in avoiding disclosure by the government-a distinction recognized by both the D.C. and Fifth Circuits. This distinction is critical to this case because the government has pro vided adequate safeguards to ensure that the informa tion is not disseminated to the public. The Privacy 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 pro visions designed to prevent the public disclosure of pro tected information weigh heavily in favor of the govern ment. See Whalen, 429 U.S. at 601-02, 97 S. Ct. 869 (finding that extensive security procedures required by statute and regulation substantially reduce employees' privacy interests); Lawall, 307 F.3d at 790 (statute con tained adequate protection to prevent unauthorized dis closure of abortion by minor female). In American Fed eration of Government Employees, the D.C. Circuit found it significant that the Privacy Act prohibited pub lic dissemination of the information obtained in person nel background investigations. 118 F.3d at 793. The court was satisfied that the protections of the Privacy Act substantially reduced the employees' privacy inter ests. 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 significant factor in finding violation of right of privacy).

In addition to Privacy Act protection, FIPS 201-1 establishes detailed privacy requirements governing the collection and retention of information, including (1) the assignment of a senior agency official to oversee pri vacy-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 contact less access to personal information; and (5) disclosure to applicants of the intended uses and privacy implications of the information submitted in order to obtain creden tials. See FIPS 201-1, § 2.4. NASA also issued an In terim Directive augmenting NPR 1600.1, which details how _all [a]pplicants will have their information pro tected 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 govern ment 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 relevant leads. Instead, the panel's opinion would second-guess determinations re garding suitability for federal employment and the secu rity of federal institutions that are best left to the Exec utive 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 desig nated references are limited to _additional 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 background investigation that authorized the govern ment to collect _any information relating to my activi ties_ sufficiently narrowly tailored because the Privacy Act limits the collection to _relevant_ information in or der 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 re quired to be accomplished by statute or by executive order of the President.__ 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 sim ilar to the release form in American Federation of Gov ernment 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 govern ment's concerns regarding the underlying activity,_ and thus, does not sufficiently 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 Em ployees Union, 25 F.3d at 243. If a government work er's illegal drug use history is not entitled to constitu tional protection, as the panel agrees, I do not see how a question regarding whether the applicant has received any treatment or counseling does not concern a legiti mate state interest, especially when it provides a more complete picture of an applicant's acknowledged drug use history. Of course, successful counseling might alle viate 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 em ployee'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 arbi trary 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 secu rity 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 re spect to personnel background investigations. For these reasons, I respectfully dissent from the denial of rehear ing 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 re hearing en banc. Judge Callahan focuses on the drug treatment question and other inquiries to the applicant. I write to supplement her discussion of the other gov ernment conduct the panel held likely to be unconstitu tional-the inquiries to references, past employers, landlords, and schools.

The panel characterizes as _the most problematic aspect of the government's investigation-the open- ended Form 42 inquiries._27 Almost 1,000,000 of these inquiries are sent out every year, not just for people applying for jobs at the Jet Propulsion Lab managing space missions and protecting national security on se cret space matters, but also for most other government jobs.28 The panel opinion is likely to impair national se curity by enjoining reasonable reference checks on ap plicants 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._29

The panel forbids the government from making the inquiries it has been making for decades, and from doing what any sensible private employer would do.30 The pan el's concern is that the _open-ended questions_-any adverse information regarding financial integrity, drug and alcohol abuse, mental and emotional stability, gen eral behavior and conduct, and other matters-go be yond the government's legitimate security needs. The panel says that _highly personal information_ is likely to come back when this form is sent to references, former employers, and landlords.31 I disagree. What these cate gories 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 gov ernment to know when it is hiring someone?32 There is no citation for the panel's claim that _[t]he highly per sonal 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._33 A landlord, unlike a doc tor or lawyer, does not obtain genuinely private medical or legal confidences, after all. That is why past employ ers, unlike doctors or lawyers, have a privilege in defa mation and invasion of privacy law.34 A past employer can (and should) tell a prospective employer if the appli cant stole money, came in late and hungover on Mon days, or wound up in jail after a drug bust, yet the ma jority 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 District of Columbia Circuit held that collection of infor mation 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 information._35 Likewise the Fifth Circuit.36 This case concerns only collection of informa tion, not dissemination.

The panel appears to be especially concerned with the _open-ended_ inquiry into _any other adverse mat ters._ The panel cites no authority, and gives no good reason, for rejecting these inquiries. When a prospec tive 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 be cause of potential liability and retaliation). The prospec tive 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.37

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 abil ity 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 Mc Carthyism is threatened by allowing as much inquiry for hiring a Jet Propulsion Lab engineer as a barista.

 

Chief Judge KOZINSKI, with whom Judges KLEIN FELD and BEA join, dissenting from the denial of re hearing en banc:

Is there a constitutional right to informational pri vacy? 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, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977) (alluding to _the individual interest in avoiding disclosure of personal matters_), and Nixon v. Administrator of General Services, 433 U.S. 425, 457, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977) (quoting the above phrase from Whalen). With no Su preme 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 turducken. 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 synthesize the accumulated experience of panels into firmer guideposts. We ought to have taken this case en banc for precisely that reason. Unless and until the Su preme Court again weighs in on this topic, only an en banc court can trim the hedges, correct what now ap pear to be missteps and give the force of law to those distinctions that experience has revealed to be impor tant.

1. One such distinction is between mere government collection of information and the government's disclo sure of private information to the public. Whalen in volved 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 allegations that the government might publish what it learned. See, e.g., Norman- Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260 (9th Cir. 1998).

The distinction matters. Government acquisition of information is already regulated by express constitu tional provisions, 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. California, which cautioned against discov ering protections in the Due Process Clause in areas where the _Bill of Rights speaks in explicit terms"? 505 U.S. 437, 443, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992). Our cases, including this one, neither address nor ac knowledge this problem. Yet limiting the government's ability to gather information has very serious implica tions, as Judge Callahan's dissent illustrates.

2. There's also an important distinction between dis closures that the target may refuse and those imposed regardless of his consent. The latter is inherently more invasive. Nixon is instructive: There, the former presi dent was required by law to submit his papers for screening by the National Archives. This requirement wasn't imposed as a condition on some benefit or job opportunity; rather, it was imposed outright under pen alty of law. 433 U.S. at 429, 97 S. Ct. 2777. Though Nix on was unsuccessful, it wasn't because his claim wasn't found to be cognizable; 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 pharmaceuticals. 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 gov ernment seeks to collect information directly from per sons 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 government commits all manner of constitutional violations on tax returns, government contract bids, loan qualification forms, and thousands of job applications that are rou tinely filled out every day.

3. There is also a distinction, recognized by some of our sister circuits, between information that pertains to a fundamental 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 foot ing than the latter.

4. Consider also the contrast between investigating a subject by digging through his bank records or medi cal 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 wide ly the information is known. The Supreme Court has made a related point about the Fourth Amendment: Individuals lack a reasonable expectation of privacy in information that they share voluntarily with others. See United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (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 en forcer of the laws and as employer. In Whalen, the gov ernment was acting as the former, collecting prescrip tion records to aid later investigation of unlawful distri bution. 429 U.S. at 591-92, 97 S. Ct. 869. 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 il lustrates 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 American Federation of Government Emp., AFL-CIO v. Department of Housing and Urban Devel opment, 118 F.3d 786, 791, 793 (D.C. Cir. 1997), it would be far more likely to apply when the government is exer cising its sovereign authority than when it is monitoring its own employees.

While I can think of many reasons to worry when the government 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 se curity and integrity of its operations in ways that private employers are not. The delicate knowledge handled by thousands of federal employees seems as worthy of pro tection as the formula for Coca-Cola.

* * *

As we have recognized elsewhere, there are circum stances when a well-worn doctrine can grow into _a vex ing thicket of precedent_ that then becomes _difficult for litigants to follow and for district courts-and our selves-to apply with consistency._ United States v. Heredia, 483 F.3d 913, 919 (9th Cir. 2007) (en banc). The back-and-forth between the panel and my dissent ing colleagues illustrates that we have reached this point with the doctrine of informational privacy. Though I am sympathetic to the arguments of my dissenting col leagues, it's not clear that the panel has misapplied cir cuit 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.

22.

APPENDIX F

23.

The Privacy Act, 5 U.S.C. 552a, provides, in pertinent part:

Records maintained on individuals

(a) Definitions.-For purposes of this section-

* * * * *

(3) the term _maintain_ includes maintain, collect, use, or disseminate;

(4) the term _record_ means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical his tory, and criminal or employment history and that contains his name, or the identifying number, sym bol, or other identifying particular assigned to the individual, such as a finger or voice print or a photo graph;

* * * * *

(b) Conditions of disclosure.-No agency shall dis close any record which is contained in a system of re cords by any means of communication 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, unless disclosure of the re cord would be-

(1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties;

(2) required under section 552 of this title;

(3) for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section;

(4) to the Bureau of the Census for purposes of planning or carrying out a census or survey or re lated activity pursuant to the provisions of title 13;

(5) to a recipient who has provided the agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;

(6) to the National Archives and Records Admin istration as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value;

(7) to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular por tion desired and the law enforcement activity for which the record is sought;

(8) to a person pursuant to a showing of compel ling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such indi vidual;

(9) to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Con gress or subcommittee of any such joint committee;

(10) to the Comptroller General, or any of his au thorized representatives, in the course of the perfor mance of the duties of the Government Accountabil ity Office;

(11) pursuant to the order of a court of competent jurisdiction; or

(12) to a consumer reporting agency in accordance with section 3711(e) of title 31.

* * * * *

(d) Access to records.-Each agency that maintains a system of records shall-

(1) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to ac company him, to review the record and have a copy made of all or any portion thereof in a form compre hensible to him, except that the agency may require the individual to furnish a written statement autho rizing discussion of that individual's record in the accompanying person's presence;

(2) permit the individual to request amendment of a record pertaining to him and-

(A) not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of such request, acknowledge in writing such receipt; and

(B) promptly, either-

(i) make any correction of any portion there of which the individual believes is not accurate, relevant, timely, or complete; or

(ii) inform the individual of its refusal to amend the record in accordance with his request, the reason for the refusal, the procedures estab lished by the agency for the individual to request a review of that refusal by the head of the agency or an officer designated by the head of the agen cy, and the name and business address of that official;

(3) permit the individual who disagrees with the refusal of the agency to amend his record to request a review of such refusal, and not later than 30 days (excluding Saturdays, Sundays, and legal public holi days) from the date on which the individual requests such review, complete such review and make a final determination unless, for good cause shown, the head of the agency extends such 30-day period; and if, af ter his review, the reviewing official also refuses to amend the record in accordance with the request, permit the individual to file with the agency a concise statement setting forth the reasons for his disagree ment with the refusal of the agency, and notify the individual of the provisions for judicial review of the reviewing official's determination under subsection (g)(1)(A) of this section;

(4) in any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the state ment under paragraph (3) of this subsection, clearly note any portion of the record which is disputed and provide copies of the statement and, if the agency deems it appropriate, copies of a concise statement of the reasons of the agency for not making the amendments requested, to persons or other agencies to whom the disputed record has been disclosed; and

(5) nothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.

(e) Agency requirements.-Each agency that main tains a system of records shall-

(1) 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 President;

* * * * *

(f) Agency rules.-In order to carry out the provi sions of this section, each agency that maintains a sys tem of records shall promulgate rules, in accordance with the requirements (including general notice) of sec tion 553 of this title, which shall-

(1) establish procedures whereby an individual can be notified in response to his request if any sys tem of records named by the individual contains a record pertaining to him;

(2) define reasonable times, places, and require ments for identifying an individual who requests his record or information pertaining to him before the agency shall make the record or information avail able to the individual;

(3) establish procedures for the disclosure to an individual upon his request of his record or informa tion pertaining to him, including special procedure, if deemed necessary, for the disclosure to an individ ual of medical records, including psychological re cords, pertaining to him;

(4) establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on the request, for an appeal within the agency of an initial adverse agency determination, and for whatever additional means may be necessary for each individual to be able to exercise fully his rights under this section; and

(5) establish fees to be charged, if any, to any in dividual for making copies of his record, excluding the cost of any search for and review of the record.

The Office of the Federal Register shall biennially com pile and publish the rules promulgated under this sub section and agency notices published under subsection (e)(4) of this section in a form available to the public at low cost.

* * * * *

 

 

24. APPENDIX G

 

 

 

 

 

 

 

 

 

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1 The Honorable Edward C. Reed, Jr., Senior United States District Judge for the District of Nevada, sitting by designation.

2 The form also notes that _for some information, a separate specific release will be needed,_ but does not explain what types of information will require a separate release.

3 Appellants claim that the factors used in the suitability determina tion were set forth in a document, temporarily posted on JPL's internal website, labeled the _Issue Characterization Chart._ The document identifies within categories designated _A_ through _D_ _[i]nfrequent, irregular, but deliberate delinquency in meeting financial obligations,_ _[p]attern of irresponsibility as reflected in . . . credit history,_ _car nal knowledge,_ _sodomy,_ _incest,_ _abusive language,_ _unlawful as sembly,_ _attitude,_ _homosexuality . . . when indications are present of possible susceptibility to coercion or blackmail,_ _physical health is sues,_ _mental, emotional, psychological, or psychiatric issues,_ _issues . . . that relate to an associate of the person under investigation,_ and _issues . . . that relate to a relative of the person under investigation._ NASA neither concedes nor denies that these factors are considered as part of its suitability analysis; instead, it suggests that Appellants have not sufficiently proved that such factors will play a role in any individual case.

4 To the extent that NASA has authority to require drug tests for current contractors, that authority is spelled out in the Civil Space Em ployee Testing Act, codified at 42 U.S.C. § 2473c. Congress enacted the Testing Act as part of the National Aeronautics & Space Administration Authorization Act, Fiscal Year 1992, and not as part of the Space Act of 1958. With the Testing Act, Congress gave NASA the power to ad minister a drug testing program for those employees or contractors re sponsible for _safety-sensitive, security, or national security functions._ Id. § 2473c(c)(1)-(2). The _program shall provide for preemployment, reasonable suspicion, random, and post-accident testing for use . . . of alcohol or a controlled substance._ Id. Moreover, the statute pro vides that any drug test _shall . . . provide for the confidentiality of test results and medical information of employees._ Id. § 2473c(f)(7).

5 This analysis presupposes that the applicant voluntarily revealed the information to the third party. For example, the Fourth Amend ment could still apply if the government actively used third parties to uncover private information. See United States. v. Walther, 652 F.2d 788, 791 (9th Cir. 1981) (noting that the Fourth Amendment is implica ted when _a private party acts as an _instrument or agent_ of the state in effecting a search or seizure._).

6 The constitutional right to informational privacy is concerned with _the individual interest in avoiding disclosure of personal matters._ In determining whether the right applies, our cases have emphasized the nature of the information sought-in particular, whether it is suffi ciently _personal_ to merit protection, see Crawford, 194 F.3d at 958; Doe, 941 F.2d at 796-rather than on the manner in which the informa tion is sought. The 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.

In this respect, the right to informational privacy differs from the Fourth Amendment, which, as a bright-line rule, _does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities._ Miller, 425 U.S. at 443, 96 S. Ct. 1619. This principle has occasionally been rephrased as a general holding _that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties._ Smith v. Maryland, 442 U.S. 735, 743-44, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979). We think it is clear, however, that 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 infor mational privacy challenge to government questioning of third parties about highly personal matters. If the constitutional right to informa tional privacy were limited to cases that involved a Fourth Amendment _search,_ the two rights would be entirely redundant. Indeed, although the two doctrines often overlap, see Norman-Bloodsaw, 135 F.3d at 1269, we have repeatedly found the right to informational privacy impli cated in contexts that did not involve a Fourth Amendment _search,_ see, e.g., Thorne, 726 F.2d at 468.

7 The Honorable Edward C. Reed, Jr., Senior United States District Judge for the District of Nevada, sitting by designation.

8 The form also notes that _for some information, a separate specific release will be needed,_ but does not explain what types of information will require a separate release.

9 Appellants claim that the factors used in the suitability determina tion were set forth in a document, temporarily posted on JPL's internal website, labeled the _Issue Characterization Chart._ The document identifies within categories designated _A_ through _D_ _[i]nfrequent, irregular, but deliberate delinquency in meeting financial obligations,_ _[p]attern of irresponsibility as reflected in . . . credit history,_ _carnal knowledge,_ _sodomy,_ _incest,_ _abusive language,_ _unlawful assembly,_ _attitude,_ _homosexuality . . . when indications are present of possible susceptibility to coercion or blackmail,_ _physical health issues,_ _mental, emotional, psychological, or psychiatric issues,_ _issues . . . that relate to an associate of the person under investiga tion,_ and _issues . . . that relate to a relative of the person under in vestigation._ NASA neither concedes nor denies that these factors are considered as part of its suitability analysis; instead, it suggests that Appellants have not sufficiently proved that such factors will play a role in any individual case.

10 While Plaintiffs allege that JPL's internal policy specifically men tions "homosexuality," "judgment, reliability and dependability issues," "physical health issues," "mental, emotional, psychological or psychiat ric issues," "issues . . . that relate to an associate of the person under investigation," and "issues . . . that relate to a relative of the person under investigation" as grounds upon which a person can be determined unsuitable for employment, the exhibit Plaintiffs use to support this allegation is devoid of any mention of these particular "grounds." See Exhibit R attached to the Penanen Declaration.

11 The Honorable Edward C. Reed, Jr., Senior United States District Judge for the District of Nevada, sitting by designation.

12 Compare Cooper v. Brown, 565 F.3d 581, 636 (9th Cir. 2009) (Rein hardt, J., dissenting from denial of rehearing en banc).

13 The putative class consists of up to 9,000 employees-not merely the 28 class representatives referenced in Judge Callahan's dissent. Class representatives include preeminent research scientists who have coor dinated the Mars Exploration Rover Mission, served on the Jet Propul sion Laboratory (_JPL_) Senior Research Counsel, and led NASA's New Millennium Program and the Mars Pathfinder Mission. Class rep resentatives also include leading engineers who have been at the fore front of many recent space missions, including the Mars Exploration Rovers Project, and the Galileo, Messenger (Mercury), and Magellan (Venus) missions, as well as JPL's chief engineer for flight dynamics, the project system engineer for the Kepler Space Observatory, and a lead principal engineer on the Constellation Program. Their research and findings have been published widely in scientific, peer-reviewed journals, and they have received hundreds of prestigious awards from NASA and the research community. The success of their scientific mis sion, which has been operating since 1958 without the new background checks, is renowned.

14 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 em ployees. NASA's designation of every position subject to a suitability determination _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 Manage ment. See 5 C.F.R. § 731.106(a).

15 We affirmed the district court's rejection of the class's Administra tive Procedure Act and Fourth Amendment claims.

16 Because our decision issued in December 2007, we did not have the benefit of the Supreme Court's most recent formulation of the prelimi nary injunction standard in Winter v. Natural Resources Defense Council, Inc., -U.S.-, 129 S. Ct. 365, 374, 172 L. Ed. 2d 249 (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, how ever, because we did not apply the _possibility of irreparable injury_ standard that the Winter Court found _too lenient._ Id. at 375. In stead, 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 pay ment of wages._ Id. at 882. Irreparable harm, therefore, was not only likely, but certain.

17 Thus, the public interest requires consideration of the fact that the California 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 pending a merits determination. The loss of up to 9,000 jobs from one of Pasadena's largest employers would be particularly devastating in this community, which has an estima ted labor force of 77,200 people. See Monthly Labor Force Data for Cities and Census Designated Places February 2009, State of Califor nia Employment Development Department (Mar. 20, 2009).

18 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 expecta tion of privacy in information he voluntarily turns over to third par ties,__ id. (quoting Smith v. Maryland, 442 U.S. 735, 743-44, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979), and citing United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976)), _the _legitimate ex pectation 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 govern ment questioning of third parties about highly personal matters,_ id.

19 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 en tire SF 85 questionnaire, were unconstitutional under the Fourth Amendment.

20 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 identi fication._ Directive on Policy for a Common Identification Standard for Federal Employees and Contractors, 2004 Pub. Papers 1765, 1765 (Aug. 27, 2004).

21 The information requested in SF 85 and Form 42 and the scope of the Authorization for Release of Information are described in our opin ion. See Nelson II, 530 F.3d at 871.

22 Judge Kleinfeld misreads the record when he asserts that our in junction _stops the government from making the inquiries it has been making for decades_-the government concedes that it sought to im pose the wide-ranging background check only as of 2007.

23 Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998), the case cited by Judge Kozinski to illustrate this third distinction, suggests that intimate de tails about sexuality and choices about sex are the type of private mat ters which implicate the constitutional right to privacy. Id. at 685. How these private matters play into this dispute requires further factual de velopment.

24 Caltech has filled JPL positions with about 5,000 of its own em ployees and with over 4,000 _affiliates_ and contractors.

25 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.

26 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 addi tion, recognizing that it was not writing on a _blank slate_ because ear lier decisions indicated that such a right existed, the District of Colum bia Circuit has expressed _grave doubts_ as to the existence of a federal right of confidentiality. 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).

27 Nelson v. NASA, 530 F.3d 865, 877 (9th Cir. 2008).

28 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 appointment 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 investigation include less than . . . written inquiries to . . . former employers and supervisors, references, and schools attended by the person under investigation._) (emphasis added); Submission for OMB Review, 70 Fed. Reg. 61,320, 61,320 (Oct. 21, 2005) (_Approx imately 980,000 INV 42 inquiries are sent to individuals annually. The INV 42 takes approximately five minutes to complete._).

29 Winter v. NRDC, - U.S. -, 129 S. Ct. 365, 381, 172 L. Ed. 2d 249 (2008), rev'g 518 F.3d 658 (9th Cir.) (emphasis added).

30 Exec. Order No. 10,450, 18 Fed. Reg. 2489 (Apr. 29, 1953), reprint ed as amended in 5 U.S.C. § 7311 app. at 77-80 (2006).

31 Nelson, 530 F.3d at 879-82.

32 See United States v. Jacobsen, 466 U.S. 109, 117, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984) (_[W]hen an individual reveals private information to another, he assumes the risk that his confidant will reveal that infor mation. . . . _).

33 Nelson, 530 F.3d at 880 n.5.

34 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).

35 Am. Fed. of Gov't Employees v. HUD, 118 F.3d 786, 793 (D.C. Cir. 1997) (emphasis added).

36 Nat'l Treasury Employees Union v. U.S. Dep't of Treasury, 25 F.3d 237, 244 (5th Cir. 1994) (_[G]iven that the information collected by the questionnaire will not be publicly disclosed, we hold that the indivi dual employees represented in the present case have no reasonable ex pectation that they can keep confidential from their government em ployer the information requested. . . . _) (emphasis added).

37 None more so than People v. Hill, 70 Cal. 2d 678, 76 Cal. Rptr. 225, 452 P.2d 329, 337 (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 suspect, later convicted, in a home-invasion murder. See also Shannon Dininny, Washington Prepares for First Ex ecution since 2001, Associated Press, Mar. 9, 2009 (suspect in a Cali fornia 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, 1963 WL 4749 (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.__).