National Aeronautics & Space Administration v. Nelson
2011 U.S. LEXIS 911, 178 L. Ed. 2d 667, 131 S.Ct. 746 (2011)
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Rule of Law:
When the government acts as an employer, it does not violate any constitutional right to informational privacy by asking reasonable, job-related questions in a background investigation, particularly when the collected information is protected from public disclosure by statute.
Facts:
- Twenty-eight contract employees, including scientists and engineers, worked for the California Institute of Technology (Cal Tech) at NASA's Jet Propulsion Laboratory (JPL), a facility owned by NASA.
- Historically, these contract employees were not required to undergo the same standard background investigations as federal civil servants.
- Following a 2004 presidential directive (HSPD-12), NASA mandated that contract employees with long-term access to its facilities, including the respondents, undergo a National Agency Check with Inquiries (NACI).
- The NACI process required employees to complete Standard Form 85 (SF-85), which inquired about illegal drug use within the last year and asked for details of any 'treatment or counseling received' for such use.
- The process also involved sending Form 42 to the employees' references, which asked for any 'adverse information' regarding the employee's honesty, financial integrity, abuse of alcohol/drugs, mental stability, and other open-ended matters.
- NASA informed the JPL employees that failing to complete the NACI process would result in denial of access to the facility and potential termination of employment by Cal Tech.
- The Privacy Act of 1974 governs the information collected during the investigation, restricting its maintenance and disclosure by the government.
Procedural Posture:
- Twenty-eight employees of NASA's Jet Propulsion Laboratory sued NASA in the U.S. District Court for the Central District of California, seeking to enjoin the new background investigation requirement.
- The District Court denied the employees' motion for a preliminary injunction.
- The employees, as appellants, appealed to the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit granted an injunction pending appeal and subsequently reversed the District Court's decision, holding that the challenged questions likely violated the employees' constitutional right to informational privacy and should be enjoined.
- NASA, as petitioner, successfully petitioned the U.S. Supreme Court for a writ of certiorari.
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Issue:
Do portions of a standard government background investigation for federal contract employees, which ask about treatment for illegal drug use and seek open-ended information from references, violate a constitutional right to informational privacy?
Opinions:
Majority - Justice Alito
No, the challenged portions of the government's background investigation do not violate a constitutional right to informational privacy. Assuming such a right exists, the government's inquiries are reasonable and justified by its strong interests as a proprietor and employer in ensuring the security of its facilities and the reliability of its workforce. The Court's review is less exacting when the government acts as an employer rather than a sovereign, and it rejected the argument that the questions must be 'necessary' or the 'least restrictive means' of achieving the government's goals. The question about drug treatment is a reasonable follow-up to identify mitigating factors, and the open-ended questions to references are a standard, efficient tool for vetting candidates. Crucially, the Privacy Act of 1974 provides substantial protection against public disclosure, which, consistent with precedents like Whalen v. Roe, sufficiently allays the constitutional privacy concerns.
Concurring - Justice Scalia
While agreeing that the government should win, this opinion argues that the Court should not have assumed a right to informational privacy exists. The correct approach would be to hold that there is no constitutional right to informational privacy. Such a right is not found in the text or tradition of the Constitution, and substantive due process should not be used to invent it. By assuming the right's existence, the majority engages in an unnecessary and incoherent balancing test, providing no clear guidance to lower courts and encouraging future litigation. The Court should have simply declared that no such right exists and resolved the case on that ground.
Concurring - Justice Thomas
Concurring in the judgment, this opinion agrees with Justice Scalia that the Constitution does not protect a right to informational privacy. No provision in the Constitution mentions such a right, and the Due Process Clause of the Fifth Amendment is not a source for unenumerated rights against the Federal Government.
Analysis:
This decision significantly cabins the potential scope of the constitutional right to informational privacy that was first articulated in Whalen and Nixon. By deferring to the government's 'reasonable' interests as an employer and emphasizing the importance of statutory safeguards like the Privacy Act, the Court has made it exceedingly difficult for government employees or contractors to challenge background investigations on privacy grounds. The ruling signals that as long as the government's questions are facially job-related and the information is shielded from public view, the collection of even highly personal data is likely constitutional. This strengthens the government's hand in personnel management and security vetting at the expense of individual informational autonomy.
