NASA v. Nelson - Petition

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

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

QUESTIONS PRESENTED

1. Whether the government violates a federal con tract employee's constitutional right to informational privacy when it asks in the course of a background in vestigation whether the employee has received coun seling or treatment for illegal drug use that has oc curred within the past year, and the employee's re sponse is used only for employment purposes and is pro tected under the Privacy Act, 5 U.S.C. 552a.

2. Whether the government violates a federal con tract employee's constitutional right to informational privacy when it asks the employee's designated refer ences for any adverse information that may have a bearing on the employee's suitability for employment at a federal facility, the reference's response is used only for employment purposes, and the information obtained is protected under the Privacy Act, 5 U.S.C. 552a.

PARTIES TO THE PROCEEDING

Petitioners are the National Aeronautics and Space Administration (NASA); Charles F. Bolden, Jr., Ad ministrator of NASA, in his official capacity; the Depart ment of Commerce; and Gary Locke, Secretary of Com merce, in his official capacity.

Respondents are the California Institute of Tech nology, a defendant below, and 28 contract employees at NASA's Jet Propulsion Laboratory, who were plaintiffs below: 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, Sharon L. Laubach, Christian A. Lindensmith, Amanda Mainzer, Scott Max well, Timothy P. McElrath, Susan Paradise, Konstantin Penanen, Celeste M. Satter, Peter M.B. Shames, Amy Snyder Hale, William John Walker, and Paul R. Weissman.

The complaint named Does 1-100 as defendants but they were not identified as parties in the court of appeals.

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

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the National Aeronautics and Space Administration (NASA) and the other federal parties, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-29a) is reported at 530 F.3d 865. A prior opinion of the court of appeals (Pet. App. 30a-49a) is reported at 512 F.3d 1134. The order and opinions of the court of appeals on denial of rehearing en banc (Pet. App. 75a-130a) are re ported at 568 F.3d 1028. The opinion of the district court denying respondents' motion for a preliminary injunction (Pet. App. 54a-74a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on June 20, 2008. A petition for rehearing was denied on June 4, 2009 (Pet. App. 75a-130a). On August 25, 2009, Justice Kennedy extended the time within which to file a petition for a writ of certiorari to and including Octo ber 2, 2009. On September 23, 2009, Justice Kennedy further extended the time to and including November 1, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Due Process Clause of the Fifth Amendment to the United States Constitution provides, in pertinent part: "[N]or shall any person be * * * deprived of life, liberty, or property, without due process of law." Perti nent portions of the Privacy Act of 1974, 5 U.S.C. 552a, are reproduced in the appendix to this petition. Pet. App. 131a-136a.

STATEMENT

Government agencies are required by Presidential directive and implementing standards to conduct a mini mum level of background investigation before providing federal contract employees with the identity credentials necessary to work at federal facilities. The forms used for this process are the same ones that have long been used to conduct background checks for applicants for federal employment. Respondents are federal contract employees working at NASA's Jet Propulsion Labora tory who object to the background-check process. In their view, the government's collection of certain infor mation relevant to their eligibility for federal cre dentialing violates a constitutional right to informational privacy. The district court disagreed and denied respon dents' request for a preliminary injunction. Pet. App. 54a-74a. The court of appeals reversed and ordered the entry of a preliminary injunction barring the use of the forms for the background checks of respondents. Id. at 1a-29a.

1. Since 1953, the federal government has required a minimum level of background investigation for federal employees in the civil service. See Exec. Order No. 10,450, 3 C.F.R. 936 (1949-1953) (5 U.S.C. 7311 note). The standard background-check process is called the National Agency Check with Inquiries (NACI). Pet. App. 3a-4a. That process includes, at a minimum, the completion of two forms: Standard Form 85 (SF-85), Questionnaire for Non-Sensitive Positions, which is com pleted by the applicant, see id. at 137a-144a; and Form 42, Investigative Request for Personal Information, which is completed by references identified by the appli cant, see id. at 145a-146a.

a. SF-85 asks the federal job applicant a variety of questions designed to determine whether the applicant is "suitable for the job." Pet. App. 137a. The form noti fies the applicant that "[g]iving us the information we ask for is voluntary," ibid.; that the information is used "for the purpose of determining your suitability for Fed eral employment," id. at 138a; and that the government "will protect [the information provided] from unautho rized disclosure," ibid. In particular, SF-85 states that "[t]he collection, maintenance, and disclosure of back ground investigative information is governed by the Pri vacy Act." Ibid. The Privacy Act permits a federal agency to maintain in its records "only such information about an individual as is relevant and necessary to ac complish a purpose of the agency required to be accom plished by statute or by executive order of the Presi dent." 5 U.S.C. 552a(e)(1). The Act requires agencies to give individuals access to records that pertain to them, 5 U.S.C. 552a(d), and to request amendments to their records, 5 U.S.C. 552a(f). Subject to certain limited ex ceptions, the Act also prohibits agencies from disclosing any record about an individual maintained in a system of records without the written consent of that individual. 5 U.S.C. 552a(b).

SF-85 requests basic biographical information such as where the applicant has lived, worked, and gone to school. Pet. App. 139a-142a. The form asks the appli cant to provide contacts who can verify former resi dences, jobs, and schooling, and to provide the names of three persons who know the applicant well and thus can serve as references. Id. at 140a-142a. The form also asks whether, in the last year, the applicant has used, possessed, supplied, or manufactured illegal drugs, while advising the applicant that "[n]either your truthful response nor information derived from your response will be used as evidence against you in any subsequent criminal proceeding." Id. at 143a. If an applicant an swers "yes" to the question regarding drug use, she is asked to "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," "[i]nclud[ing] any treatment or counseling received." Ibid. Finally, the form requests the applicant's authori zation for the release of information, so that federal in vestigators may contact individuals listed on the form, verify the information provided, and inquire about the applicant's suitability for employment. Id. at 144a.

b. Form 42 is a two-page form that is sent to per sons listed on SF-85 as references, former landlords, or persons who can verify periods of self-employment and/or unemployment. See Pet. App. 145a-146a.1 Form 42 advises its recipient that it is seeking information relevant to the applicant's "suitability for employment or security clearance." Id. at 145a. It asks how long the recipient has known the applicant and how often the recipient associates or has associated with the applicant. Id. at 146a. It then asks a series of yes/no questions, including whether the recipient has "any reason to ques tion [the applicant's] honesty or trustworthiness," ibid. (Item 6), or has "any adverse information about [the ap plicant's] employment, residence or activities" concern ing _violations of the law,_ _financial integrity,_ _abuse of alcohol and/or drugs,_ _mental or emotional stability,_ _general behavior or conduct,_ or _other matters,_ ibid. (Item 7). If the answer is "yes," Form 42 asks the recip ient to "explain in Item 8," which in turn asks the recipi ent for "additional information which you feel may have a bearing on [the applicant's] suitability for government employment or a security clearance," noting that "this space may be used for derogatory as well as positive in formation." Ibid. (capitalization altered). Form 42 con cludes by asking whether the recipient would recom mend the applicant for a government security clearance or employment. Ibid. The Office of Personnel Manage ment (OPM) estimates that approximately 980,000 Form 42 inquiries are sent out each year, and that Form 42 should take approximately five minutes to complete. See 70 Fed. Reg. 61,320 (2005).

2. The background-check process long required for federal civil service employees recently has been made applicable to contract employees at federal facilities. In 2004, the President issued a directive to the Department of Commerce to develop a mandatory and uniform "Federal standard for secure and reliable forms of iden tification" to control access to federally controlled facili ties and information systems. Homeland Security Pres idential Directive / HSPD 12-Policy for a Common Identification Standard for Federal Employees and Contractors, Pub. Papers 1765-1766 (2004) (HSPD-12). The President charged the Office of Management and Budget (OMB) with ensuring compliance with that stan dard. Id. at 1765. The President explained that the di rective was designed to improve the security of federally controlled facilities and information systems, increase government efficiency, reduce identity fraud, and pro tect personal privacy. Ibid. The directive applies to all Executive Branch departments and agencies. Ibid.; Pet. App. 56a.

In accordance with HSPD-12, the Department of Commerce put in place a minimum standard for the issu ance of identity credentials to federal contract em- ployees. Pet. App. 57a; see Nat'l Inst. of Standards & Technology, Dep't of Commerce, Personal Identity Ver ification (PIV) of Federal Employees and Contractors, Federal Information Processing Standards Publication at v (Mar. 2006) (FIPS 201-1) <http://csrc.nist.gov/publications/fips/fips201-1/FIPS-201-1-chng1.pdf>. As relevant here, that standard includes the initiation of a background check using the NACI process, involving SF-85 and Form 42, described above. Pet. App. 57a. FIPS 201-1 establishes (at 7-8, 44) detailed privacy re quirements to protect the information received.2

OMB then issued a memorandum to guide the imple mentation of the federal credentialing standard. Memo randum from Joshua B. Bolten, Director, OMB, to the Heads of All Departments and Agencies (Aug. 5, 2005) <http://www.whitehouse.gov/omb/memoranda/fy2005/ m05-24.pdf> (C.A. App. 449-461). That memorandum required all federal agencies to begin the required back ground investigation process for employees of current contractors by October 27, 2007. C.A. App. 454.

3. The Jet Propulsion Laboratory (JPL) is a federal research and development facility owned by NASA. Pet. App. 56a. JPL is the leading NASA center for deep space robotics and communications missions, and it is renowned for its work in developing satellites, rockets, missiles, spacecraft, and telescopes. See id. at 96a, 98a- 99a (Callahan, J., dissenting from denial of rehearing en banc); C.A. App. 470.

JPL is operated by the California Institute of Tech nology (Caltech) pursuant to a contract with NASA. All positions at JPL are filled by contract employees. C.A. App. 470. These employees, hired by Caltech, perform duties functionally equivalent to those of federal civil service employees at other NASA centers, and they have access to NASA physical facilities and information tech nology systems that is similar to the access of their civil service counterparts. Id. at 469-470.

In 2005, NASA established a new agency-wide policy for the issuance of security credentials. Pet. App. 5a; see C.A. App. 511 (NASA Procedural Requirement (NPR) 1600.1).3 As relevant here, the new policy re quired that all contract employees working at JPL un dergo the NACI background investigation process be fore receiving security credentials. Ibid. That change was designed to bring NASA into compliance with the requirements for all agencies under HSPD-12. Pet. App. 57a. The new procedures also responded to NASA's own conclusion that failing to conduct back ground checks of contract employees would pose a secu rity vulnerability for the agency. C.A. App. 471.

In 2007, NASA modified its contract with Caltech to require that contract employees working at JPL un dergo the NACI process. Pet. App. 5a; C.A. App. 473, 649-652, 658-659. NASA initiates the necessary back ground investigation by collecting a contract employee's completed SF-85, which it submits to OPM for investiga tion. Id. at 473. OPM sends inquiries, including Form 42, to various individuals and institutions listed on SF- 85. Pet. App. 4a. OPM then furnishes a report of the investigation to NASA, and NASA determines whether to grant access, deny access, or investigate further. C.A. App. 474.

4. The individual respondents are 28 Caltech em ployees working at JPL. Pet. App. 55a. Seeking to rep resent a class of similarly situated employees, respon dents sued NASA, the Department of Commerce, Caltech, and others, and moved for a preliminary injunc tion to bar implementation of the background-check pro cess at JPL. Ibid.; C.A. App. 1501-1523.4 They argued, inter alia, that the background checks would violate the Fourth Amendment, the Privacy Act, and a constitu tional right to informational privacy.5

The district court denied respondents' motion for a preliminary injunction. Pet. App. 54a-74a. The court first rejected respondents' Fourth Amendment claim, id. at 63a-64a, explaining that respondents "make no argument that a questionnaire, background check, or authorization to release records constitutes a 'search,'" and that, in any event, "there has not been an actual invasion of privacy, but only a potential invasion since the government has not yet checked any of [respon dents'] backgrounds," id. at 64a. The court then re jected the Privacy Act claim because "SF-85 specifically states that it complies with the Privacy Act" and respon dents have not shown that "information collected via SF- 85 was not properly maintained or gathered" for pur poses of the Act. Id. at 67a.

Finally, the court concluded that respondents had not established a likelihood of success on the merits of their claim that the background-check process violates a constitutional right to informational privacy. Pet. App. 68a-73a. The court noted that SF-85 "does not seek ex tensive or overly-sensitive information," and that there are "very high-tech and sensitive devices at JPL, such as satellite monitoring equipment, that warrant strict secu rity measures." Id. at 72a. The court concluded that the government's collection of information about respon dents was narrowly tailored to advance the govern ment's legitimate interest in enhancing security at fed eral facilities. Id. at 68a-72a.

5. Respondents appealed, challenging the district court's rulings on the Fourth Amendment and informa tional privacy, but not on the Privacy Act. A motions panel of the court of appeals granted respondents an injunction pending appeal, which is still in effect. Pet. App. 50a-53a. A merits panel then reversed the district court's denial of a preliminary injunction. Id. at 30a-49a. In response to the government's petition for rehearing en banc, the merits panel withdrew its initial opinion and issued a revised opinion. Id. at 1a-29a.

The court held that respondents were unlikely to succeed on their Fourth Amendment claim. The court explained that requests for information from third par ties would be deemed "searches" only if the individual has a "reasonable expectation of privacy" in the informa tion being sought-a requirement that is not satisfied "merely because that information is of a 'private' na ture." Pet. App. 13a. The court determined that Form 42's questions are permissible under those principles because "the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities." Id. at 15a (quoting United States v. Miller, 425 U.S. 435, 443 (1976)). The court also rejected the Fourth Amendment challenge to SF-85. Relying on the Seventh Circuit's decision in Greenawalt v. Indiana Department of Cor rections, 397 F.3d 587 (2005) (Posner, J.), the court rea soned that disclosure of information through "direct questioning" is not a Fourth Amendment search. Pet. App. 16a-17a.

The court of appeals concluded, however, that the district court had erred in finding that respondents were unlikely to succeed on the merits of their constitu tionally-based informational privacy claim, Pet. App. 26a, holding that respondents had raised sufficiently serious questions on that claim to warrant a preliminary injunction, id. at 8a, 29a. See id. at 17a-26a. The court explained, without citing to any decision of this Court, that it had "repeatedly acknowledged that the Constitu tion protects an 'individual interest in avoiding disclo sure of personal matters.'" Id. at 17a (quoting In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999)). In the court's view, the government must justify its collection of personal information by 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." Id. at 18a (quoting Crawford, 194 F.3d at 959).

The court described this inquiry as a balancing of "the government's interest in having or using the infor mation against the individual's interest in denying ac cess." Pet. App. 18a (quoting Doe v. Attorney Gen. of the United States, 941 F.2d 780, 796 (9th Cir. 1991)). The court provided a non-exclusive list of potentially relevant factors, including "the type of [information] requested," "the potential for harm in any subsequent nonconsensual disclosure," "the adequacy of safeguards to prevent unauthorized disclosure," "the degree of need for access" to the information, "and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest" justifying that ac cess. Ibid. (quoting Doe, 941 F.2d at 796).

The court first applied its test to the questions on SF-85. Pet. App. 19a-22a. The court determined that "most of the questions * * * are unproblematic and do not implicate the constitutional right to informational privacy," id. at 19a, and that the specific question re quiring disclosure of prior drug activity is narrowly tai lored to achieve the government's legitimate interest in uncovering and addressing illegal drug activity among its contract employees, id. at 20a-21a. But the court decided that the government may not ask an applicant who has used drugs whether she has obtained treatment or counseling, because, in the court's view, the govern ment does not have "any legitimate interest" in seeking such information. Id. at 22a.

The court found Form 42 "much more problematic." Pet. App. 22a. The court acknowledged that the govern ment "has several legitimate reasons for investigating its contractors," id. at 24a, and that Form 42's request for "'any adverse information about this person's em ployment, residence, or activities' may solicit some infor mation relevant to the applicant's identity or security risk," id. at 25a. But the court characterized Form 42's questions as "broad" and "open-ended," and found it "difficult to see how" these questions were narrowly tailored to justify the government's interests in conduct ing background checks of contract employees having access to federal facilities, particularly those persons categorized as low risk. Id. at 24a-25a.

6. The government filed a second petition for re hearing en banc, which was denied. Judge Wardlaw issued an opinion concurring in the denial of rehearing en banc, Pet. App. 76a-95a, expressing the view that the court should await "a fully developed factual record" before reviewing the legal issues further, id. at 91a-92a, and that the "provocative questions" raised by other judges about the court's privacy doctrine only "under score[] [the] panel's conclusions that serious questions were raised justifying the preliminary injunction," id. at 92a.

A total of five judges joined three published dissents from denial of rehearing en banc. Pet. App. 96a-130a. Judge Callahan's dissent (id. at 96a-120a) regarded the panel's opinion as "an unprecedented expansion of the constitutional right to informational privacy" that "reaches well beyond this case and may undermine per sonnel background investigations performed daily by federal, state, and local governments." Id. at 97a (Callahan, J., joined by Kleinfeld, Tallman, and Bea, JJ.). She noted that the panel's decision "sets our cir cuit apart from the District of Columbia Circuit and the Fifth Circuit, both of which have rejected privacy-based challenges to background checks similar to, or more in trusive than, the one here." Id. at 98a (citing AFGE v. HUD, 118 F.3d 786 (D.C. Cir. 1997), and NTEU v. United States Dep't of Treasury, 25 F.3d 237 (5th Cir. 1994)). Judge Callahan also expressed the view that the practical result of the panel's decision is to "sharply cur tail[] the degree to which the government can protect the safety and security of federal facilities." Id. at 120a.

Judge Kleinfeld's dissent (Pet. App. 120a-124a) fo cused on Form 42, stating that the panel's opinion calls into question the most basic investigation of an applicant by a prospective employer, such as when a federal judge about to "hire law clerks and secretaries * * * talk[s] to professors and past employers and ask[s] some gen eral questions about what they are like." Id. at 124a (Kleinfeld, J., joined by Callahan and Bea, JJ.). He ex plained that the references and landlords the applicant lists on SF-85 are highly likely to have information rele vant to job fitness, and without some "open-ended ques tions, it is hard to know what potential problems might need an explanation." Id. at 122a-124a. Judge Kleinfeld expressed concern that, as a result of the panel's deci sion, NASA "cannot exercise the reasonable care an espresso stand or clothing store exercises when hiring" its employees. Id. at 124a.

Chief Judge Kozinski raised questions about the na ture and scope of a constitutional right to informational privacy, particularly a right to prevent collection of in formation, as distinguished from its disclosure. Pet. App. 125a-130a (Kozinski, C.J., joined by Kleinfeld and Bea, JJ.). He observed that this Court had "hinted" at a constitutional right to informational privacy in two cases in the 1970s and then "never said another word about it." Id. at 125a (citing Whalen v. Roe, 429 U.S. 589 (1977), and Nixon v. Administrator of Gen. Servs., 433 U.S. 425 (1977)). As a result, he observed, the courts of appeals "have been left to develop the contours of this free-floating privacy guarantee on their own," which he believed had resulted in the Ninth Circuit in "a grab-bag of cases on specific issues" without any "theory as to what this right (if it exists) is all about." Ibid.

Chief Judge Kozinski pointed to a number of distinc tions that he believed would be important in defining such a right: between collection and disclosure of infor mation, Pet. App. 125a-126a; between situations in which a person cannot avoid the government's collection of information and cases in which the applicant can do so by seeking other employment, id. at 126a-127a; between information "pertain[ing] to a fundamental right, such as the right to an abortion or contraception," and "a free- standing right not to have the world know bad things about you," id. at 127a-128a; between collection of infor mation from private files and collection of information from third parties, id. at 128a; and between the govern ment's "functions as enforcer of the laws and as em ployer," id. at 128a-129a. Chief Judge Kozinski criti cized the panel for failing to address those distinctions and characterized Ninth Circuit law as "so subjective and amorphous" that it cannot reliably be applied to new factual situations. Id. at 129a-130a.

REASONS FOR GRANTING THE PETITION

The court of appeals has directed the entry of a pre liminary injunction exempting respondents-who are contract employees working at an important federal facility-from routine background checks of the sort that are performed hundreds of thousands of times each year for federal employees. That ruling is wrong and warrants this Court's review.

There is no need in this case to determine the scope of a constitutionally-based right to privacy for certain information or the range of governmental actions that may impermissibly interfere with such a right. Here, respondents' facial challenge to the inquiries in the background-check process is foreclosed in light of the reduced expectations of privacy in the employment con text, the longstanding and widespread use of SF-85 and Form 42, and the Privacy Act's protections regarding the maintenance and dissemination of the information.

The ramifications of the decision below are poten tially dramatic. The decision prevents the routine back ground checks of many government contract employees and it casts a constitutional cloud over the background- check process the government has used for federal civil service employees for over 50 years. The decision also is in substantial tension with decisions of the Fifth and D.C. Circuits. Those courts have upheld against privacy-based challenges background investigations that are similar to or more intrusive than the process at issue here. This Court's review is therefore warranted.

I. THE COURT OF APPEALS DECIDED AN IMPORTANT CONSTITUTIONAL QUESTION WITHOUT GIVING DUE REGARD TO THIS COURT'S PRECEDENTS

The court of appeals has held that the Constitution requires the entry of a preliminary injunction to prevent the government from undertaking routine background checks of respondents to determine their suitability for credentials to enter federal facilities. The court's deci sion goes well beyond any decision of this Court, has no sound legal basis, and threatens substantial interference with important governmental functions.

1. This Court has issued two decisions discussing a constitutional right to prevent disclosure of certain in formation. The primary case concerning this question is Whalen v. Roe, 429 U.S. 589 (1977). In that case, the Court rejected a constitutional challenge to a state stat ute requiring doctors to disclose to a state agency, for maintenance in a database, the identity of persons who received certain prescription narcotics. Id. at 600-602. The Court observed that "[t]he cases sometimes charac terized as protecting 'privacy' have in fact involved at least two different kinds of interests": "the individual interest in avoiding disclosure of personal matters," and "the interest in independence in making certain kinds of important decisions." Id. at 598-600. The Court then determined that the state statute did not pose a suffi ciently grievous threat to either interest to establish a constitutional violation. Id. at 600, 604. With respect to the interest in avoiding disclosure, the Court noted that disclosures of private medical information to hospitals, insurers, and state agencies "are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient." Id. at 602. The Court also stressed that the state statute prohibited public disclosure of the information reported to the state agency, id. at 594-595, 601, observing that the government collects and uses data of a personal character for a wide variety of purposes, and that its right to do so is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted dis closure, id. at 605. The Court recognized that "in some circumstances that duty arguably has its roots in the Constitution," but concluded that even were that so in Whalen, the statutory scheme and implementing regula tions "evidence a proper concern with, and protection of, the individual's interest in privacy." Ibid.

The other decision in which this Court addressed a claim of constitutionally protected privacy interests in personal information is Nixon v. Administrator of Gen eral Services, 433 U.S. 425 (1977). In that case, the Court rejected a variety of challenges to the Presiden tial Recordings and Materials Preservation Act autho rizing the collection and archiving of Presidential pa pers. As relevant here, the Court, relying on Whalen, rejected the claim that the mere screening of the former President's private materials by government archivists violated his constitutional right to privacy. Id. at 455- 465. The Court explained that Whalen had "[e]mpha siz[ed] the precautions utilized by New York State to prevent the unwarranted disclosure of private medical information retained in a state computer bank system," and concluded that the Presidential records act man dated regulations similarly aimed at preventing undue dissemination of private material. Id. at 458.

2. Without citing either of these decisions, the Ninth Circuit in this case suggested that "the right to informa tional privacy" encompasses any information that "is not generally disclosed by individuals to the public," Pet. App. 22a (internal quotation marks omitted), even when sought by the federal government from a contract em ployee and third parties for purposes of making employment-related decisions. In stating this holding, the court of appeals did not define with any particularity what information counts as sufficiently "private," and in what contexts, to outweigh the governmental interest in obtaining the information for specified purposes. See id. at 122a-123a (Kleinfeld, J., dissenting from denial of rehearing en banc). The court simply described the rel evant inquiry as a balancing of "the government's inter est in having or using the information against the individ ual's interest in denying access," provided a non-exclu sive list of factors that are potentially relevant, and de termined that under this test respondents had raised serious constitutional concerns about critical aspects of the government's most commonly used employment forms. Ibid. (quoting Doe v. Attorney Gen. of the United States, 941 F.2d 780, 796 (9th Cir. 1991)).

3. a. In enjoining the background-check process, the court of appeals ignored the guidance that this Court provided in Whalen and Nixon for assessing a constitu tional claim to informational privacy. Both Whalen and Nixon distinguished between the government's collec tion of information and its dissemination of information to the public, indicating that the latter presents more serious constitutional concerns than the former. See Nixon, 433 U.S. at 456-457; Whalen, 429 U.S. at 600-601. Yet the court of appeals indicated that it would apply the same balancing test any time the "government's actions compel disclosure of private information," regardless of whether the information is provided to the government for its own limited use or instead is disseminated pub licly. Pet. App. 17a-18a.

Of particular significance, both Whalen and Nixon determined that any privacy concerns with respect to the information in question were met by statutory and regulatory protections limiting the public dissemination of the information. Nixon, 433 U.S. at 458-460; Whalen, 429 U.S. at 601-602. In this case, those protections in clude the Privacy Act, which requires, inter alia, that a federal agency that has a system of records maintain in those records only such information about an individual as is "relevant and necessary" to accomplish a purpose required by statute or executive order of the President, 5 U.S.C. 552a(e)(1), grants individuals a right of access to and correction of their records, 5 U.S.C. 552a(d), and strictly regulates any disclosures, 5 U.S.C. 552a(b). In addition, specific privacy requirements adopted by the Department of Commerce in its credentialing standard, FIPS 201-1, supplement the Privacy Act protections in this context. Pet. App. 117a-118a (Callahan, J., dissent ing from denial of rehearing en banc). Yet the court of appeals gave short shrift to the statutory and regulatory provisions that prevent public dissemination of informa tion collected during background checks. Id. at 23a-24a. Indeed, the court did not even mention the Privacy Act, although SF-85 expressly notes that important source of protection. Id. at 138a; see id. at 117a-118a (Callahan, J., dissenting from denial of rehearing en banc). And the court directed entry of an injunction barring use of the forms, even though Whalen made clear that "the remote possibility" that existing safeguards "will pro vide inadequate protection against unwarranted disclo sures" is "surely not a sufficient reason for invalidating the entire" information-collection program. 429 U.S. at 601-602.

b. The court of appeals erred in several other re spects as well. The court did not distinguish between "disclosures that the target may refuse"-such as those made or authorized by a person seeking federal employ ment or access to federal facilities-and "those imposed regardless of his consent," even though the latter is "in herently more invasive." Pet. App. 126a-127a (Kozinski, C.J., dissenting from denial of rehearing en banc). The court also apparently assumed that the informational privacy right would apply to any information that is not generally disclosed to the public, id. at 22a, regardless of whether that information pertained to an independ ently recognized private sphere, such as "marriage, pro creation, contraception, family relationships, child rear ing, and education," Washington v. Glucksberg, 521 U.S. 702, 726 (1997), or concerned matters that are compara bly sensitive.

Further, the court applied its standard equally to information obtained from the applicant himself and information obtained from third parties. Pet. App. 17a- 18a, 22a n.5. As Judge Callahan noted, prior to the deci sion below, no court had held "that individuals have a constitutionally protected right to privacy in information disclosed to [third parties]." Id. at 107a. That is unsur prising, because this Court has often recognized in the Fourth Amendment context that an individual does not have a reasonable expectation of privacy in information he voluntarily reveals to a third party, who subsequently conveys that information to the government. See, e.g., Smith v. Maryland, 442 U.S. 735, 743-744 (1979); United States v. Miller, 425 U.S. 435, 443 (1976). The court of appeals responded to that longstanding Fourth Amend ment precedent by stating that the inquiry in the con text of a claim to informational privacy is different and should turn on "the nature of the information sought-in particular, whether it is sufficiently 'personal' to merit protection-rather than on the manner in which the in formation is sought." Pet. App. 22a n.5 (internal citation omitted). But an individual's prior disclosure of infor mation to third parties (such as employers, landlords, or educational institutions)-or the third parties' acquisi tion of such information in the ordinary course of their business-may be highly relevant in assessing a consti tutional claim relating to informational privacy. That is especially true when the information sought is employment-related, and the persons contacted are for mer employers, landlords, or other references whom the applicant identified as part of a process to determine his suitability for employment or access to federal facilities and information systems.

Finally, and relatedly, the court did not distinguish between the government's interests as a regulator and its interests as an employer. Pet. App. 129a (Kozinski, C.J., dissenting from denial of rehearing en banc); see id. at 110a-111a (Callahan, J., dissenting from denial of rehearing en banc). See Engquist v. Oregon Dep't of Agric., 128 S. Ct. 2146, 2152 (2008) (courts should "con sider whether the asserted employee right implicates the basic concerns of the relevant constitutional provi sion, or whether the claimed right can more readily give way to the requirements of the government as em ployer"). In particular, the court essentially ignored the widespread and accepted use of SF-85 and Form 42 in determining the suitability of individuals for federal employment-a practice so entrenched as itself to rebut the notion that the inquiries on these forms unconstitu tionally intrude upon privacy interests.

4. The court of appeals also erred in finding the challenged inquiries to be insufficiently "tailored" to the important governmental interests underlying them. Contrary to the court's suggestion (Pet. App. 22a, 24a- 25a), the inquiries seek only job-related information. SF-85 requests information about illegal drug use and related counseling because they are relevant to the gov ernment's decision whether an applicant is sufficiently trustworthy to gain access to federal facilities and infor mation systems as a contract employee. See id. at 138a (SF-85 seeks information "for the purpose of determin ing your suitability for Federal employment"). The court of appeals acknowledged that the government has an interest in asking about recent drug use, id. at 21a, but decided that no such interest exists in seeking infor mation about drug counseling or other treatment, be cause such treatment "presumably would lessen the gov ernment's concerns regarding the underlying activity." Id. at 22a. But that is the very reason for asking about counseling and treatment. Just as recent drug usage raises legitimate concerns about government creden tialing, so too does recent, successful drug therapy miti gate those concerns. Thus, counseling and treatment, no less than use, are relevant to the government's decision about an individual's suitability for employment or ac cess to federal facilities.

Form 42's questions likewise are limited to matters bearing on suitability for federal employment, including contract employment. As the court of appeals recog nized, "NASA has an interest in verifying its contrac tors' identities to make sure that they are who they say they are" and investigating them to "ensure[] the secu rity of the JPL facility so as not to jeopardize the costly investments housed therein." Pet. App. 24a. The court held that this interest is insufficient because "there are no safeguards in place to limit the disclosures to infor mation relevant to these purposes." Id. at 25a. But that conclusion is belied by Form 42 itself. The form states at the outset that its purpose is "to help [the govern ment] determine [the applicant's] suitability for employ ment or security clearance." Id. at 145a. And even the question on the form most subject to the court of ap peals' characterization as "open-ended" specifically lim its the response requested to information that the recipi ent feels "may have a bearing on this person's suitability for government employment or a security clearance." Id. at 146a. Equally important, to the extent that this or other questions raise a concern about the information that might be received in a particular case, the Privacy Act ensures that an agency will maintain such informa tion only if it is "relevant" to an agency function, and the Act affords an individual a right of access to his records and the opportunity to seek an amendment of them. 5 U.S.C. 552a(d), (e)(1) and (f). The court of appeals disregarded these important limitations and protections.

5. Recognition of a constitutional right to informa tional privacy that restricts the government's solicita tion of basic employment-related information has poten tially far-reaching consequences. First, the court's deci sion finds likely constitutional violations in key aspects of the background-check process that is used for a sig nificant portion of the 57,000 contract employees work ing at NASA facilities. Pet. App. 102a (Callahan, J., dis senting from denial of rehearing en banc). The Presi dent issued HSPD-12 in response to concerns that arose after September 11, 2001, about individuals gaining ac cess to federal facilities through identification fraud, and the Department of Commerce and NASA determined that an important way to ensure the security of federal facilities is to require federal contract employees work ing at those facilities to undergo the NACI process. Pet. App. 100a-101a (Callahan, J., dissenting from denial of rehearing en banc). The court of appeals' decision over rides that considered judgment by the agencies about the proper way to comply with the President's directive to ensure the security of federal facilities and informa tion systems. Those security concerns are particularly significant with respect to JPL, a multi-billion-dollar facility that houses "some of the most sensitive and ex pensive equipment owned by NASA." Id. at 96a (Calla han, J., dissenting from denial of rehearing en banc).

The decision below also casts a constitutional cloud on the background-check process that has been required for federal civil service employees for over 50 years. Although the judge who authored the panel's decision suggested, on denial of rehearing, that the government could "continue reasonable reference checks" and "even * * * utilize Form 42" when the government has a "sufficiently great" justification and "adheres to proper limiting standards," Pet. App. 85a (Wardlaw, J., concur ring in denial of rehearing en banc), the panel's decision provides little guidance as to what would be "reason able," "sufficient[]," or "proper." Worse yet, that sub stantial uncertainty may have effects beyond the Ninth Circuit, because the federal government promulgates standard forms and procedures on a nationwide basis.

Finally, the court of appeals' ruling calls into ques tion even the most basic inquiries, beyond the forms used here, that public employers undertake for prospec tive employees. The federal government, like any other prospective employer, commonly solicits information from former employers and other references. In this process, government officials often ask general ques tions about the candidate's fitness, because they think that these questions may uncover information that nar rowly focused inquiries have failed to produce. Yet the court of appeals' decision, in its hostility to "broad" and "open-ended" questions, Pet. App. 24a-25a, casts consti tutional doubt on such general requests. Indeed, the decision's analysis appears to render suspect the most commonplace reference checks conducted by employers, such as when judges "hir[ing] law clerks and secretaries * * * talk[] to professors and past employers and ask[] some general questions about what they are like." Id. at 124a (Kleinfeld, J., dissenting from denial of rehearing en banc). Those potentially far-reaching consequences of the court of appeals' decision warrant this Court's consideration.

II. THE DECISION BELOW DIVERGES FROM DECISIONS OF OTHER CIRCUITS UPHOLDING SIMILAR BACK GROUND CHECKS

The Ninth Circuit's decision stands in stark contrast to decisions of other courts of appeals that have rejected privacy-based challenges to background checks for fed eral civil service employees.

1. In AFGE v. HUD, 118 F.3d 786, 794 (1997), the D.C. Circuit rejected constitutional and statutory chal lenges to particular portions of SF-85P, a form required for employees in public trust positions, and SF-86, a form required for employees who are in national secu rity positions or who have access to classified informa tion. Id. at 788-790. The employees challenged, inter alia, questions concerning prior illegal activity, drug use, and bankruptcies; delinquent financial obligations; and mental health treatment. Ibid. The employees also challenged the forms' authorization for federal investi gators to contact individuals identified on the form. Ibid. As relevant here, the court of appeals rejected those challenges without deciding whether the Constitu tion protected the information, because even assuming that it does, the government had "presented sufficiently weighty interests in obtaining the information sought by the questionnaires to justify the intrusions into their em ployees' privacy." Id. at 793.

The court explained that "the individual interest" in protecting private information "is significantly less im portant where the information is collected by the gov ernment but not disseminated publicly." AFGE, 118 F.3d at 793. That is especially true, the court stated, where "there are measures designed to protect the con fidentiality of" the information collected, such as the Privacy Act. Ibid. The court then determined that the government's interests in hiring trustworthy employees and protecting national security are sufficient to justify each of the challenged questions, and that the forms' authorization for contacting third parties is supported by the government's need to verify the information pro vided by the applicant that is relevant to job suitability. Id. at 793-794.

The Fifth Circuit rejected a similar challenge to SF- 85P in NTEU v. United States Department of the Trea sury, 25 F.3d 237 (1994). In that case, a union chal lenged the request for information about illegal drug use within the past five years and its follow-up request for information about "any treatment or counseling re ceived." Id. at 239-240. The court of appeals rejected that challenge on standing grounds because the employ ees "ha[d] no reasonable expectation that they can keep [this information] confidential from their government employer." Id. at 244. The court explained that an im portant public interest in ensuring the trustworthiness of employees supports collecting the information at is sue. Id. at 243-244. And, like the D.C. Circuit, the Fifth Circuit emphasized that the information collected was disclosed only to the government, in its role as an em ployer, "and certainly not to the public." Id. at 244.

2. The decision below diverges from the decisions of the Fifth and D.C. Circuits. See Pet. App. 98a, 116a, 120a (Callahan, J., dissenting from denial of rehearing en banc). Although the Fifth and D.C. Circuits consid ered the use of SF-85P and SF-86 for employees in pub lic trust and national security positions, rather than the use of SF-85 for other employees, the questions posed on all three forms are similar. The drug and counseling questions challenged in this case directly parallel those at issue in AFGE and NTEU. Compare pp. 3-6, supra, with AFGE, 118 F.3d at 788, 790, and NTEU, 25 F.3d at 239-240. Further, all three forms conclude with a re lease that authorizes federal officials to contact third parties to inquire about the applicant's suitability for employment. Pet. App. 144a; AFGE, 118 F.3d at 789- 790.

In considering the legality of these forms, the Ninth Circuit held that the government has no legitimate in terest in seeking information from federal contract em ployees about treatment for illegal drug use and dis credited the government's interest in seeking informa tion from third parties about the contract employees' suitability for access to federal facilities. See Pet. App. 22a (drug treatment question); id. at 23a, 25a, 26a (Form 42 inquiries). The Fifth and D.C. Circuits, however, determined that similar inquiries were supported by important governmental interests, including hiring trustworthy employees and ensuring facility and information-system security. See AFGE, 118 F.3d at 793-794; NTEU, 25 F.3d at 243-244. Perhaps most fun damentally, the Ninth Circuit, unlike the other courts to have addressed similar issues, essentially disregarded the considered judgment of the Department of Com merce and NASA about how best to promote those inter ests, showing not the slightest reluctance to intrude on the actions of the Executive as an employer in a sensi tive realm of operations.

Further, the Ninth Circuit's reasoning differs signifi cantly from that used by the other circuits. The Ninth Circuit's analysis fails to distinguish between the collec tion of information by the government and the disclo sure of that information to the public, and largely disre gards the safeguards protecting against public disclo sure. See Pet. App. 17a-18a. The Fifth and D.C. Cir cuits, by contrast, found a crucial difference between the government's collection of employment-related data and the dissemination of such data to the public, and the D.C. Circuit expressly relied on the Privacy Act as an important mechanism for preventing public disclosure. AFGE, 118 F.3d at 793; NTEU, 25 F.3d at 244. See also Walls v. City of Petersburg, 895 F.2d 188, 194 (4th Cir. 1990) (stressing the importance of such protections); Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105, 117-118 (3d Cir. 1987) (same).

3. The procedural context here does not diminish the need for the Court to resolve these disagreements. The court of appeals' ruling arises in the context of a request for a preliminary injunction. But contrary to the suggestion of the concurrence in the denial of re hearing en banc (see Pet. App. 91a-92a), an expanded record is not necessary for this Court's review because the Ninth Circuit's decision rests on legal errors. The question before the court of appeals and before this Court is whether the Constitution precludes the govern ment from asking certain questions on the face of SF-85 and Form 42. That is an issue of law to be decided un der this Court's decision in Whalen. The validity of the questions should be sustained under Whalen based on the nature of the questions on SF-85 and Form 42, the persons to whom the questions are directed, the wide spread and longstanding use of the forms in federal em ployment, and the Privacy Act's restrictions on the maintenance and disclosure of personal information.

As noted, the Ninth Circuit has already rejected the rationale for the drug counseling question posed in SF- 85 and has explicitly doubted that Form 42 is adequately tailored to survive constitutional scrutiny. And the fun damentally flawed mode of analysis adopted in the de cision-including its failure to distinguish between the collection and dissemination of information, its discount ing of statutory provisions and regulations designed to prevent dissemination, and its treatment of information in the hands of third parties as entitled to significant privacy protection-is now binding circuit law. The dis trict court on remand and other courts in the Ninth Cir cuit will not be free to re-examine these mistaken legal premises. Given the widespread use of the forms at is sue here, and the routine nature of the employment- based inquiries such forms exemplify, the Ninth Cir cuit's decision, as it stands, therefore threatens signifi cant interference with government operations. This Court should grant review now to remove the constitu tional shadow the Ninth Circuit has cast on heretofore widely accepted employment-related practices of the government.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

ELENA KAGAN
Solicitor General
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

NOVEMBER 2009

1 Similar forms are sent to the educational institutions (Form 43) and former employers (Form 41) identified by the applicant.

2 Although FIPS 201-1 authorizes the use of the NACI or an alternative investigation approved by OPM (FIPS 201-1, at 6), NASA has not sought to utilize an alternative investigation.

3 NASA promulgated the policy pursuant to its authority under the National Aeronautics and Space Act of 1958, 42 U.S.C. 2455, 2456, 2456a, and 2473.

4 The case has not been certified as a class action.

5 Respondents also alleged that the background-check process violates the Administrative Procedure Act (APA) because it is not authorized by statute and violates various provisions of the California Constitution. Pet. App. 55a; C.A. App. 1520, 1522. The district court rejected the APA claim, Pet. App. 65a-66a, and did not expressly rule on the state-law claims. Respondents appealed on the APA claim, but the court of appeals rejected it, id. at 11a-13a.

Respondents also alleged that, once the background-check process was complete, NASA would rely on improper factors to determine whether to issue to contract employees credentials for access to federal facilities. C.A. App. 1515-1516. The government denies that it made such determinations based on improper factors, but that claim is not at issue here, because the district court (Pet. App. 62a-63a) and the court of appeals (id. at 8a-9a) concluded that respondents lack standing to bring the claim and that the claim is not ripe for review.