Case $2\mathrm{.}1$

Robert M$.$ Nelson v$.$ National Aeronautics and Space Administration

$530$ F$\mathrm{.}3$d $865$; $2008$ U$.$S$.$ App. LEXIS $13205(9$th Circuit$)$

The issue in this case is whether the background check of low$-$risk contract employees is an invasion of privacy.

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 Aeronautics and Space Administration $("$NASA$")$ and the California Institute of Technology $("$Caltech$").$ Appellants sued NASA, Caltech, and the Department of Commerce $($collectively "Appellees"$),$ challenging NASA's recently adopted requirement that "low risk" contract employees like themselves submit to in$-$depth background investigations. The district court denled Appellants' request for a preliminary injunction, finding they were unlikely to succeed on the merits and unable to demonstrate irreparable harm. Because Appellants raise serious legal and constitutional questions and because the balance of hardships tips sharply in their favor, we reverse and remand.

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JPL is located on federally owned land, but operated entirely by Caltech pursuant to a contract with NASA.

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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 procedures requiring "low risk" JPL personnel to yield to broad background investigations as a condition of retaining access to JPL$\text{'}$s facilities. NASA's new policy requires that every JPL employee undergo a National Agency Check with Inquiries $($NACI$),$ the same background investigation required of government civil service employees, before he or she can obtain an identification badge needed for access to JPL$\text{'}$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, educational, 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 treatment or counseling received. This information is then checked against four government databases: $(1)$ Security$/$Suitability Investigations Index; $(2)$ the Defense Clearance and Investigation Index; $(3)$ the FBI Name Check; and $(4)$ the FBI National 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$]$ activities from schools, residential management agents, employers, criminal justice agencies, retail business establishments, or other sources of information." The information sought "may include, but is not limited to$,[$the applicant's$]$ academic, residential, achievement, performance, attendance, disciplinary, employment history, and criminal history record information." The record is vague as to the exact extent to and manner in which the government will seek this information, but it is undisputed that each of the applicants' 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$]$

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applicants' 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 trustworthiness" or has "any adverse information about $[$the applicant's$]$ employment, residence, or activities" concerning "violations of law," "financial integrity," "abuse of alcohol 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 collected, NASA and the federal Office of Personnel Management determine whether the employee is "suitable" for continued access to NASA's facilities, though the exact mechanics of this suitability determination are in dispute.

Since it was first created in $1958,$ NASA, like all other federal agencies, has conducted NACl investigations of its civil servant employees but not of its contract employees. Around the year $2000,$ however, NASA "determined that the incomplete screening of contractor employees posed a security vulnerability for the agency' and began