NASA v. Nelson
Encyclopedia
NASA v. Nelson, No. 09-530
(2011), was a recent case in which the Supreme Court of the United States
held that NASA
's background check
s of contract employees did not violate any constitutional privacy right.
, on the recommendation of the 9/11 Commission
, issued a directive ordering new, uniform identification standards for federal employees, including contract employees. Previously, federal contract employees were not generally required to undergo background investigation, except as required by specific contracts. Pursuant to this directive, the Department of Commerce mandated that contract employees with long-term access to federal facilities must complete a background check and set an October 2007 deadline for completion of this effort. The Jet Propulsion Laboratory
(JPL), a NASA facility that is operated by the California Institute of Technology
(Caltech) under government contract and hence is staffed entirely by contract employees, was subject to this requirement. In January 2007, NASA modified its contract with Caltech to include a new background-check requirement. Employees of JPL were informed that they must undergo background investigation by October 2007, or else they would be terminated
.
In August 2007, 28 JPL scientists and engineers sued NASA, Caltech, and the Department of Commerce in the District Court for the Central District of California
, alleging that the background-check requirement violated a constitutional right to informational privacy. The district court denied a motion for a preliminary injunction, but the Ninth Circuit
reversed the district court's order. The circuit court held that portions of the background-check forms were likely unconstitutional, particularly portions requiring disclosure of drug treatment or counseling (which the court questioned whether the government had a legitimate interest in requiring), as well as open-ended questions soliciting "any adverse information" concerning financial integrity, mental stability, and "other matters" (which the court doubted were narrowly tailored to meet legitimate interests). The Ninth Circuit later denied rehearing en banc
. The government appealed, and the Supreme Court granted certiorari
.
and Nixon v. Administrator of General Services, the Supreme Court hinted that such a right might exist, but it had never settled the issue definitively. In an 8–0 decision, the Supreme Court ruled that the NASA background checks did not violate any such constitutional privacy right that might exist. The majority of the Supreme Court decided to leave open the question of whether any such constitutional right exists. Taking an approach similar to the Court in Whalen, they assumed, without deciding, that such a right does exist, and then ruled that the background checks do not violate such a right. In particular, they found that the government has a legitimate and long-standing interest in conducting reasonable employment background checks and said that courts should "keep those interests in mind when asked to go line-by-line through the Government’s employment forms and to scrutinize the choice and wording of the questions they contain". In addition, the Court found that the government's interests do not hinge on the distinction between federal civil-service employees and federal contract employees; the contract employees at JPL perform critical work, and the government has a strong interest in carrying out background checks on them.
Justice Scalia
, in a concurring opinion joined by Justice Thomas
, agreed that the background checks did not violate any constitutional rights, but argued that the Court should have settled the constitutional privacy question—in the negative. Scalia accused the respondents of asking the Court "to invent a constitutional right out of whole cloth" and dismissed their position as "farcical". Scalia criticized the Court's decision to evade the constitutional question, writing: "Thirty-three years have passed since the Court first suggested that the right may, or may not, exist. It is past time for the Court to abandon this Alfred Hitchcock line of our jurisprudence."
In addition to joining Scalia, Thomas also filed his own, very short (single-paragraph) concurrence, objecting to the idea of a constitutional right to informational privacy.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(2011), was a recent case in which the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
held that NASA
NASA
The National Aeronautics and Space Administration is the agency of the United States government that is responsible for the nation's civilian space program and for aeronautics and aerospace research...
's background check
Background check
A background check or background investigation is the process of looking up and compiling criminal records, commercial records and financial records of an individual....
s of contract employees did not violate any constitutional privacy right.
Background
In 2004, President George W. BushGeorge W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
, on the recommendation of the 9/11 Commission
9/11 Commission
The National Commission on Terrorist Attacks Upon the United States, also known as the 9/11 Commission, was set up on November 27, 2002, "to prepare a full and complete account of the circumstances surrounding the September 11, 2001 attacks", including preparedness for and the immediate response to...
, issued a directive ordering new, uniform identification standards for federal employees, including contract employees. Previously, federal contract employees were not generally required to undergo background investigation, except as required by specific contracts. Pursuant to this directive, the Department of Commerce mandated that contract employees with long-term access to federal facilities must complete a background check and set an October 2007 deadline for completion of this effort. The Jet Propulsion Laboratory
Jet Propulsion Laboratory
Jet Propulsion Laboratory is a federally funded research and development center and NASA field center located in the San Gabriel Valley area of Los Angeles County, California, United States. The facility is headquartered in the city of Pasadena on the border of La Cañada Flintridge and Pasadena...
(JPL), a NASA facility that is operated by the California Institute of Technology
California Institute of Technology
The California Institute of Technology is a private research university located in Pasadena, California, United States. Caltech has six academic divisions with strong emphases on science and engineering...
(Caltech) under government contract and hence is staffed entirely by contract employees, was subject to this requirement. In January 2007, NASA modified its contract with Caltech to include a new background-check requirement. Employees of JPL were informed that they must undergo background investigation by October 2007, or else they would be terminated
Termination of employment
-Involuntary termination:Involuntary termination is the employee's departure at the hands of the employer. There are two basic types of involuntary termination, known often as being "fired" and "laid off." To be fired, as opposed to being laid off, is generally thought of to be the employee's...
.
In August 2007, 28 JPL scientists and engineers sued NASA, Caltech, and the Department of Commerce in the District Court for the Central District of California
United States District Court for the Central District of California
The United States District Court for the Central District of California serves over 18 million people in southern and central California, making it the largest federal judicial district by population...
, alleging that the background-check requirement violated a constitutional right to informational privacy. The district court denied a motion for a preliminary injunction, but the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
reversed the district court's order. The circuit court held that portions of the background-check forms were likely unconstitutional, particularly portions requiring disclosure of drug treatment or counseling (which the court questioned whether the government had a legitimate interest in requiring), as well as open-ended questions soliciting "any adverse information" concerning financial integrity, mental stability, and "other matters" (which the court doubted were narrowly tailored to meet legitimate interests). The Ninth Circuit later denied rehearing en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
. The government appealed, and the Supreme Court granted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
.
Opinion of the Court
The issue before the Supreme Court was whether the background checks required of the JPL employees violated a right to informational privacy. In two previous cases, Whalen v. RoeWhalen v. Roe
Whalen v. Roe, 429 U.S. 589 , was a case brought before the Supreme Court of the United States.-See also:* List of United States Supreme Court cases, volume 429*...
and Nixon v. Administrator of General Services, the Supreme Court hinted that such a right might exist, but it had never settled the issue definitively. In an 8–0 decision, the Supreme Court ruled that the NASA background checks did not violate any such constitutional privacy right that might exist. The majority of the Supreme Court decided to leave open the question of whether any such constitutional right exists. Taking an approach similar to the Court in Whalen, they assumed, without deciding, that such a right does exist, and then ruled that the background checks do not violate such a right. In particular, they found that the government has a legitimate and long-standing interest in conducting reasonable employment background checks and said that courts should "keep those interests in mind when asked to go line-by-line through the Government’s employment forms and to scrutinize the choice and wording of the questions they contain". In addition, the Court found that the government's interests do not hinge on the distinction between federal civil-service employees and federal contract employees; the contract employees at JPL perform critical work, and the government has a strong interest in carrying out background checks on them.
Justice Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, in a concurring opinion joined by Justice Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
, agreed that the background checks did not violate any constitutional rights, but argued that the Court should have settled the constitutional privacy question—in the negative. Scalia accused the respondents of asking the Court "to invent a constitutional right out of whole cloth" and dismissed their position as "farcical". Scalia criticized the Court's decision to evade the constitutional question, writing: "Thirty-three years have passed since the Court first suggested that the right may, or may not, exist. It is past time for the Court to abandon this Alfred Hitchcock line of our jurisprudence."
In addition to joining Scalia, Thomas also filed his own, very short (single-paragraph) concurrence, objecting to the idea of a constitutional right to informational privacy.