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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

REPLY BRIEF FOR THE UNITED STATES

ELENA KAGAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

In the Supreme Court of the United States

No. 09-530

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

REPLY BRIEF FOR THE UNITED STATES

 

The court of appeals held that conducting basic back ground checks of contract employees seeking access to NASA's Jet Propulsion Laboratory (JPL)-using forms that for many years have been routine in the federal sec tor-intrudes upon and likely violates a federal constitu tional right to informational privacy. The court so held even though the government collects only employment-re lated information, acquires this information only from the individuals themselves and persons they designate, and protects the information from public disclosure. The Ninth Circuit's decision extends well beyond any decision of this Court, stands in stark contrast to decisions from two other courts of appeals, and has potentially far-reaching conse quences. This Court's review is warranted.

1. a. The decision below is unprecedented and wrong. The court of appeals recognized a constitutional privacy

right that is implicated any time the government collects information that a person would "not generally disclose[] * * * to the public." Pet. App. 22a (internal quotation marks omitted). The court drew no distinction between the government's mere collection of information for legitimate governmental purposes and its disclosure of such informa tion to the public, and it ignored the Privacy Act, which protects against public disclosure of the information col lected. Pet. 19-20. Further, the court failed to give weight to the reduced expectations of privacy in the employment context or to distinguish between the government's inter ests as a regulator and its interests as a proprietor or em ployer. Pet. App. 110a-111a (Callahan, J., dissenting from denial of rehearing en banc). And the court ignored the widespread and longstanding use of the forms at issue. Id. at 126a-127a (Kozinski, C.J., dissenting from denial of re hearing en banc). The court of appeals' holding thus re stricts the government's ability to gather information, in cluding of the most routine kind, in circumstances never before thought to raise any issues.

b. The decision below extends far beyond this Court's decisions. In Whalen v. Roe, 429 U.S. 589 (1977), the infor mational privacy concerns the Court identified stemmed not from the collection and use of the information, which the Court recognized served important public purposes, but from the prospect of public disclosure of sensitive informa tion. Id. at 598-605. The Court further concluded that stat utory and regulatory protections against public dissemina tion of the information collected satisfied any constitutional privacy concerns. Id. at 605-606; see also Nixon v. Admin istrator of Gen. Servs., 433 U.S. 425, 455-457 (1977). By contrast, here the court decided that the government's mere solicitation and receipt of information through widely used forms that ask questions typical in such inquiries could violate a constitutional privacy right, even if the information was never publicly disclosed. Respondents' post hoc at tempt (Br. in Opp. 21-23) to harmonize the decision below with Whalen and Nixon is unavailing, but ultimately beside the point, for the court of appeals did not even cite Whalen and Nixon, much less analyze this case under the frame work those decisions applied.1 Nor did the court cite the Privacy Act, which addresses the privacy concerns that those decisions raised. See Pet. 19-20 (outlining Privacy Act protections). Contrary to respondents' contention (Br. in Opp. 22), the court nowhere suggested that the Privacy Act's protections against disclosure are inadequate, let alone explained such a conclusion.

c. Nor can the decision below be reconciled with deci sions of the Fifth and D.C. Circuits upholding materially indistinguishable employment-related inquiries against privacy-based challenges. See Pet. 25-29 (discussing NTEU v. United States Dep't of the Treasury, 25 F.3d 237 (5th Cir. 1994), and AFGE v. HUD, 118 F.3d 786 (D.C. Cir. 1997)); see also Pet. App. 98a (Callahan, J., dissenting from denial of rehearing en banc). Respondents observe (Br. in Opp. 23-24) that the other circuits considered challenges brought by federal employees, not contractors. But that factual difference does not explain the circuits' wide diver gence in legal approach.

The Fifth and D.C. Circuits emphasized that "the indi vidual interest in protecting the privacy of the information sought by the government is significantly less important where the information is collected by the government but not disseminated publicly." AFGE, 118 F.3d at 793-794; see NTEU, 25 F.3d at 244 ("[T]he [background check] ques tionnaire requires these public trust employees only to dis close information to the IRS, as their employer-not to anyone else, and certainly not to the public."). The Ninth Circuit made no such distinction. See Pet. App. 17a-18a. Had this case been brought in the Fifth or D.C. Circuits, the result would have been different.

2. The effects of the decision below are potentially dra matic and far-reaching. The Ninth Circuit overrode the considered judgment of the federal agencies that basic background checks of federal contract employees are nec essary to ensure the security of federal facilities and infor mation systems to which those employees would have ac cess. Pet. App. 22a-23a, 25a-26a. That judgment was reached after a 2004 Presidential directive required the agencies to improve credentialing of persons working at federal facilities so as to address the serious security con cerns that arose as a result of the September 11, 2001, at tacks. Pet. 6-8, 24. Both the Department of Commerce and NASA determined that security concerns justified use of the National Agency Check with Inquiries (NACI) process or a substantially equivalent alternative for contract em ployees. Pet. 6-8 & n.2. The result of the Ninth Circuit's decision is to "sharply curtail[] the degree to which the gov ernment can protect the safety and security of federal facilities"-in particular, the multi-billion-dollar JPL, which houses "some of the most sensitive and expensive equip ment owned by NASA." Pet. App. 96a, 120a (Callahan, J., dissenting from denial of rehearing en banc). Contract employees occupy all positions at JPL, with access to NASA facilities and information systems similar to their civil ser vice counterparts. C.A. App. 469-470.2

The decision below casts a constitutional shadow far beyond JPL. The government conducts background checks for millions of civil service employees and contract employ ees annually, using the same NACI process and forms at issue here. Such a process has been used for federal em ployees for over 50 years. See Pet. 3 (citing Exec. Order No. 10,450, 3 C.F.R. 936 (1949-1953 comp.)). As a result of the decision below, the federal government faces significant uncertainty about what background checks might be consti tutional in the Ninth Circuit, and this uncertainty may have still broader consequences because the federal government promulgates standard forms and procedures on a nation wide basis.

The majority's broad ruling provides no guidance to the United States or to the numerous state and local govern ments in the Ninth Circuit. On denial of rehearing en banc, the author of the majority opinion suggested that "reason able" background checks may be justified when the govern ment has a "sufficiently great" justification and "adheres to proper limiting standards." Pet. App. 85a (Wardlaw, J., concurring in denial of rehearing en banc). But the judge did not provide any explanation of what would count as "reasonable," "sufficient[]," or "proper." Other judges ex pressed concern that the panel's holding could "undermine personnel background investigations performed daily by federal, state, and local governments." Id. at 97a (Callahan, J., dissenting from denial of rehearing en banc). Indeed, Judge Kleinfeld suggested that federal judges hiring law clerks may not be able to "talk to professors and past em ployers and ask some general questions about what they are like." Id. at 124a (Kleinfeld, J., dissenting from denial of rehearing en banc).

The disruptive effects of the decision below on critical government operations warrant this Court's review. See, e.g., Butz v. Economou, 438 U.S. 478, 480-481 (1978) (grant ing certiorari in part to ensure "the effective functioning of government"); United States v. Utah Constr. & Mining Co., 384 U.S. 394, 400 (1966) (granting certiorari "because of the importance of these questions in the administration of gov ernment contracts").

3. Respondents contend (Br. in Opp. 2, 12) that review is premature because the decision arises in the context of a preliminary injunction. They are mistaken.

The Ninth Circuit set out a legal framework for assess ing informational privacy claims that will bind the district court on remand and the court of appeals in future cases. See, e.g., Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. United States Dep't of Agr., 499 F.3d 1108, 1114 (9th Cir. 2007) ("the general rule" that "de cisions at the preliminary injunction phase do not constitute the law of the case" does not apply to "conclusions on pure issues of law"; such conclusions are "binding" as law of the case and in future cases). In particular, the court deter mined that the government's collection of employment-re lated information for contract employees implicates a con stitutional right to informational privacy, Pet. App. 22a, and that the framework for assessing whether that right has been violated requires ad hoc balancing of the intrusion on privacy interests against the government's need for the information sought, id. at 17a-18a. The court also decided that it makes no difference in the constitutional analysis whether the information is collected by the government for its own use or is widely disclosed to the public; whether the government is acting as a proprietor or employer or instead as a regulator when collecting the information; or whether any statutory or regulatory provisions protect the informa tion from public disclosure. Pet. 19-22.

Respondents do not seriously contend that the district court may vary from the court of appeals' legal framework for assessing informational privacy claims. Instead, they claim (Br. in Opp. 14, 16) that the Ninth Circuit did not hold that they would likely succeed on the merits of their claims. That is wrong. See, e.g., Pet. App. 22a ("Appellants are likely to succeed on this * * * portion of their informa tional privacy challenge to SF 85."); id. at 36a-37a (respon dents "are likely to succeed on the merits"); id. at 44a-45a ("the district court erred in finding that [respondents] were unlikely to succeed on their" Form 42 claim).

Respondents also argue (Br. in Opp. 11-12) that further development of the record is necessary to explore why the government is seeking the information, how the govern ment gathers the information, and what the government does with the information once collected. The only is sue before the court of appeals was the collection of infor mation through Standard Form 85 (SF-85) and Form 42, which by their terms are limited to employment-related purposes. No further information is required to review the court of appeals' legal conclusions about those two forms. The court held as to SF-85, which asks an individual who has acknowledged using illegal drugs within the past year whether he received any treatment or counseling, Pet. App. 143a, that the balancing inquiry it thought appropriate should be resolved in respondents' favor because "the gov ernment has failed to demonstrate a legitimate state inter est" supporting the collection of the information, id. at 22a. The court reached that conclusion even though acknowledg ing that "any treatment or counseling received for illegal drug use * * * lessen[s] the government's concerns re garding the underlying activity," ibid., which is precisely why the government has an interest in the information. Further, the court determined as to Form 42, a two-page form sent to designated references asking for information bearing on the applicant's "suitability for government em ployment or a security clearance," id. at 146a, that although the government had legitimate interests in seeking such information, id. at 24a, the government had failed to show that the Form's "open-ended" questions were "narrowly tailored to meet" those needs, id. at 24a-25a. In light of these rulings, respondents' assertion (Br. in Opp. 12) that "[n]othing in the decision below precludes the government from fully making its case on remand" rings hollow.

Review by this Court of interlocutory decisions is appro priate when an "important" issue of law "is fundamental to the further conduct of the case," "particularly if the lower court's decision is patently incorrect and the interlocutory decision, such as a preliminary injunction, will have immedi ate consequences for the petitioner." Eugene Gressman et al., Supreme Court Practice 281 (9th ed. 2007) (citing cases). For example, the Court granted certiorari in United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 489 (2001), to review an interlocutory decision requir ing a district court to consider a "medical necessity" de fense to a Controlled Substances Act violation, because the court of appeals' decision "raise[d] significant questions as to the ability of the United States to enforce the Nation's drug laws." Review likewise is warranted here: the Ninth Circuit's expansive and erroneous legal ruling leaves little room for the government on remand and casts into doubt an important means for the government to ensure that it hires trustworthy employees and appropriately protects federal facilities.

4. Contrary to respondents' repeated contention, the background checks at issue seek only employment-related information, and the case presents no issue regarding whether the government relies on improper factors in mak ing employment-related decisions.

a. As explained in the petition, SF-85 and Form 42 collect only employment-related information, and all infor mation collected is subject to the extensive protections in the Privacy Act. Pet. 3-6, 22-23. An examination of SF-85 and Form 42 makes that point clear: both forms limit their scope to questions, routine in the employment context, re garding whether the applicant is "suitable for the job" (Pet. App. 137a; see id. at 145a-146a), and both expressly state that the Privacy Act protects any information collected (id. at 138a, 145a). There is no basis for respondents' sugges tion (Br. in Opp. 16) that Form 42 is used to obtain informa tion about private sexual activity: Nothing on the face of Form 42 requests such information, Pet. App. 145a-146a; the form is not "used for any purpose other than a person nel background investigation," 75 Fed. Reg. 5359 (2010); it asks only for information that "may have a bearing on this person's suitability for government employment or a secu rity clearance," Pet. App. 146a; it is sent only to persons the applicant designates, id. at 145a-146a; and it takes only five minutes to complete, see 70 Fed. Reg. 61,230 (2005).

b. Respondents contend (Br. in Opp. 7, 16, 19-20) that the government's credentialing decisions "could delve into unquestionably private matters," appending to their brief a chart (matrix) they say evidences this possibility. That claim is not before this Court. Respondents brought two privacy-based claims: that the inquiries on SF-85 and Form 42 are "overly broad and intrusive," and that, once that information is collected, JPL will make credentialing decisions on improper grounds. Pet. App. 62a. Both the district court and the court of appeals decided that the sec ond challenge was "unripe and unfit for judicial review," because the government had not even begun the back ground checks of respondents and respondents' claims are "strictly speculative." Id. at 8a-9a, 61a-63a; see Br. in Opp. 8 (acknowledging those holdings). And contrary to respon dents' repeated assertions and intimations (Br. in Opp. 9, 10, 11, 16, 20), the court of appeals' constitutional analysis of respondents' informational privacy claim concerning SF- 85 and Form 42 was not linked to the use of the chart they have appended. The court's opinion mentions the chart only once, in a footnote in the opinion's background portion (see Pet. App. 5a n.2), and it is not referred to at all in the court's analysis of respondents' informational privacy claim (see id. at 17a-26a).

In any event, at no point in this litigation has the gov ernment claimed authority to make credentialing determi nations on criteria unrelated to employment. See Pet. 9 n.5. NASA has informed this Office that it does not use the chart appended to respondents' brief to decide whether to provide identity credentials to federal contract employees and that NASA management has so instructed officials within the agency on several occasions. Further, in re sponse to Executive Order No. 13,467, 3 C.F.R. 196 (2009), in which the President charged the Office of Personnel Management (OPM) with "developing and implementing uniform and consistent policies and procedures" for deter mining "eligibility for logical and physical access" to federal facilities, id. § 2.3(b) at 200, OPM has issued standards that all agencies must use in credentialing federal contract em ployees. Those standards do not consider private sexual activity or any other improper factors.

Although approximately 39,000 NASA contract employ ees had completed the requisite background investigations as of September 21, 2007, C.A. App. 473-474, respondents cite neither any irregularities in the credentialing process nor any denials of credentials based on the use of improper criteria. If an employee believes that an adverse decision was made on any such improper ground, he is afforded a right of review. See id. at 951. The opinion at issue here does not concern that kind of claim. The decision below instead calls into constitutional question the government's ability to use standard employment forms in deciding whether to provide security credentials to contract employ ees working at a sensitive federal facility. That unprece dented ruling warrants review.

* * * * *

For the foregoing reasons and those stated in the peti tion, the petition for a writ of certiorari should be granted.

Respectfully submitted.

ELENA KAGAN
Solicitor General

FEBRUARY 2010

1 Contrary to respondents' suggestion (Br. in Opp. 21-22), whether the information collected would be disclosed publicly was not merely "one of many" factors in the Court's analysis; it was the Court's central focus. See Nixon, 433 U.S. at 458-459 (Whalen "[e]mphasiz[ed] the pre cautions utilized by New York State to prevent the unwarranted dis closure of private medical information"; "the Act challenged here man date[s] regulations similarly aimed at preventing undue dissemination of private materials").

2 Although one of the respondents characterizes JPL as an open "university campus type environment," Br. in Opp. 3 (quoting C.A. App. 145), that assertion lacks foundation in the record. There are security checkpoints at all entrances to JPL, and everyone who gains access to JPL, including Caltech faculty, "must apply for and receive a badge from NASA." C.A. App. 766, 771.