National Aeronautics and Space Administration v. Nelson
562 U.S. (2011)
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Rule of Law:
When the government acts as an employer, its reasonable, employment-related background inquiries that are subject to statutory protections against public disclosure do not violate any assumed constitutional right to informational privacy.
Facts:
- The National Aeronautics and Space Administration (NASA) uses contractor employees from the California Institute of Technology (Cal Tech) to staff its Jet Propulsion Laboratory (JPL).
- Respondents are 28 long-term JPL contract employees who perform critical scientific and technical work.
- Following a 2004 presidential directive, NASA began requiring its contract employees with long-term access to federal facilities, including the respondents, to undergo a standard background investigation called a National Agency Check with Inquiries (NACI).
- The NACI process requires employees to complete Standard Form 85 (SF-85), which asks if the employee has used illegal drugs in the last year and, if so, requires details about any 'treatment or counseling received.'
- The process also involves sending Form 42 to the employee's designated references, which asks broad, open-ended questions about 'adverse information' concerning the employee's honesty, trustworthiness, financial integrity, drug or alcohol abuse, and mental stability.
- NASA informed JPL employees that failure to complete the NACI process would result in the termination of their access to the facility and, consequently, their jobs.
Procedural Posture:
- Twenty-eight JPL employees (respondents) sued NASA in the U.S. District Court, seeking an injunction to stop the background investigations.
- The District Court denied the respondents' motion for a preliminary injunction.
- Respondents appealed to the U.S. Court of Appeals for the Ninth Circuit, which is an intermediate appellate court.
- The Ninth Circuit granted an injunction pending appeal and later reversed the District Court, holding that portions of the background check were likely unconstitutional.
- The Ninth Circuit denied a petition for rehearing en banc.
- NASA (petitioners) successfully petitioned the U.S. Supreme Court for a writ of certiorari.
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Issue:
Do the government's background investigation questions regarding drug treatment and other general 'adverse information' violate a federal contract employee's constitutional right to informational privacy?
Opinions:
Majority - Justice Alito
No. The challenged portions of the government's background check do not violate a constitutional right to informational privacy. The Court assumed, without deciding, that a constitutional right to informational privacy exists but found that the government's actions were justified. The Court's reasoning is twofold: First, the government is acting in its capacity as an employer and proprietor, which affords it a 'much freer hand' in managing its internal operations and ensuring a reliable workforce than when it acts as a sovereign regulating citizens at large. The questions asked are reasonable employment-related inquiries and do not need to be the 'least restrictive means' of achieving the government's goals. Second, the information collected is protected from public dissemination by the Privacy Act of 1974, which, like the statutes in Whalen and Nixon, provides a sufficient safeguard against unwarranted disclosures.
Concurring - Justice Scalia
No. The government's background checks are constitutional because a federal constitutional right to 'informational privacy' does not exist. The Court should have resolved the case on this simple ground rather than assuming the existence of a hypothetical right and then engaging in a balancing test. Such a right is not found in the Constitution's text and is not 'deeply rooted in this Nation’s history and tradition' as required for substantive due process protection. By assuming the right's existence, the Court provides no clear guidance to lower courts, encourages future litigation, and pontificates on policy matters beyond its charter.
Concurring - Justice Thomas
No. The background checks are constitutional because the Constitution does not protect a right to informational privacy. Agreeing with Justice Scalia, this opinion states that no provision in the Constitution mentions such a right and that the Due Process Clause should not be interpreted as a 'wellspring of unenumerated rights' against the Federal Government.
Analysis:
This decision significantly cabins the potential scope of the constitutional 'right to informational privacy' that was first suggested in Whalen v. Roe and Nixon v. GSA, particularly within the context of government employment. By declining to apply a strict scrutiny or 'least restrictive means' test, the Court grants the government substantial deference when it acts as an employer conducting background checks. While the Court technically left the core question of the right's existence unanswered, its reasoning makes it exceedingly difficult for future plaintiffs to prevail on such claims, so long as the government's inquiries are reasonably related to employment and the information is protected by a statute like the Privacy Act.
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