High Court Backs NASA Background Checks

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The U.S. Supreme Court Jan. 19 rejected 8-0 the case brought by National Aeronautics and Space Administration contract workers who contended that NASA violated their privacy rights under the U.S. Constitution by requiring them to answer questions about their drug treatment and asking their designated references whether they have any reason to question the individual's honesty or trustworthiness (NASA v. Nelson, U.S., No. 09-530, 1/19/11).

Writing for the court, Justice Samuel A. Alito said it was not necessary for the justices to decide whether NASA's questions about contract workers at the agency's Jet Propulsion Laboratory implicated privacy interests of “constitutional significance” because it was clear that any such constitutional interest, if it exists, did not prevent the government from taking reasonable steps that served legitimate government interests and gave the employees substantial protection against public disclosure of their personal information.

Citing the Privacy Act's requirements that the government limit disclosure of information about the JPL contract employees and the government's long-standing use of pre-employment investigations of federal job applicants, Alito wrote that “we conclude that the Government's inquiries do not violate a constitutional right to information privacy.”

Chief Justice John G. Roberts, along with Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor joined in the majority opinion. Justice Elena Kagan, who earlier represented the government in the case as solicitor general, took no part in consideration or decision of the case.

Justice Antonin Scalia, joined by Justice Clarence Thomas, concurred in the court's judgment. Scalia agreed that the JPL workers' lawsuit was insupportable, but said he arrived at that conclusion on “simpler grounds.” Writing that “[a] federal constitutional right to 'informational privacy' does not exist,” Scalia said the court's decision to assume--without deciding--the existence of a constitutional right will “dramatically increase the number” of privacy-rights lawsuits, giving “a generous gift to the plaintiff's bar.”

Dan Stormer of Hadsell Stormer Keeny Richardson & Renick in Pasadena, Calif., who argued for a group of contract employees before the Supreme Court, said he was of course disappointed in the outcome of the case, but said that on the general issue of the existence of a right to privacy, the court's decision was “not a bad ruling.”

Stormer told BNA Jan. 19 that a number of organizations filed amicus briefs supporting Nelson because of a concern that the Supreme Court had taken up the case with the intent of denying that there was a right to privacy under the Constitution. Stating that the court's narrow decision did not represent the result some had feared, Stormer said that the majority's assumption that a right to privacy exists is “a very good thing” from the perspective of employees.

Katharine Parker, a partner at Proskauer Rose in New York who is co-head of the firm's Employment Law Counseling Group, had a different perspective when she spoke to BNA Jan. 19. While acknowledging the decision is important for federal contractors whose employees must undergo government background checks, Parker said that “if anything can be read into the tea leaves” for private employers generally from a decision involving the employees of government contractors, it is that the justices recognize questions like those used by NASA are commonplace, normal, and reasonable in the private sector.

New Background Checks

According to the decision, Robert Nelson and 27 other plaintiffs were long-term employees at JPL, a facility owned by NASA but operated by the California Institute of Technology where scientists conduct pure scientific research and also manage most of NASA's deep-space robotics and communications.

Alito said that most of the 28 employees have worked at JPL for decades and were hired during periods when background checks were required for federal employees but not for the employees of federal contractors.

But in 2004, the court observed, the 9/11 Commission recommended the adoption of uniform standards for employees, and the Department of Commerce began to require that contract employees who had long-term access to federal government information systems and facilities complete a standard background check. In 2007, NASA modified its contract with Caltech to require that all contract workers be subjected to a background check known as the National Agency Check with Inquiries (NACI).

Alito said that the NACI process “has long been the standard background investigation for prospective civil servants” and commences when an applicant for a “non-sensitive” position fills out a questionnaire referred to as Standard Form 85. Among the questions asked on the form is whether during the previous year the individual has “used, possessed, supplied, or manufactured illegal drugs.”

After an individual completes SF-85, Alito said the NACI includes an agency check and inquiries directed to the former employers, schools, landlords, and references listed by the applicant on the form.

The inquiries are requested on Form 42, which asks if the reference has “any reason to question” the “honesty or trustworthiness” of the individual. Alito observed that the form also solicits any “adverse information” about the individual, including issues of financial integrity, alcohol or drug abuse, mental and emotional stability, and any other information that may bear on “suitability for government employment or a security clearance.”

The court said that all of the applicant or employee responses on an SF-85, and all of the references provided on a Form 42 are subject to the protections of the Privacy Act. Citing Section 552a(b) of the act, Alito said that “[s]ubject to certain exceptions, the Government may not disclose records pertaining to an individual without that individual's written consent.”

Nelson and other employees sued to block the investigation of JPL contract workers, but the U.S. District Court for the Central District of California denied the employees' motion for a preliminary injunction.

However, the U.S. Court of Appeals for the Ninth Circuit found in January 2008 ( 512 F.3d 1134, 26 IER Cases 1793 (9th Cir. 2008)) and in an expanded, substituted decision in June 2008 ( 530 F.3d 865, 27 IER Cases 1397 (9th Cir. 2008)) that the background check required for contract scientists, engineers, and administrative support personnel had the potential to violate their informational privacy rights. The appeals court found that the contract employees raised “serious questions” regarding their privacy claims and that the balance of potential hardships “tips sharply” in favor of granting the injunction.

Inquiries Appropriate

Stating that the government had no constitutional burden to demonstrate that its questions in an employment background check were necessary, or that the government had chosen the least intrusive method of investigating employees, the Supreme Court concluded that “SF-85's 'treatment or counseling' question reasonably seeks to identify a subset of acknowledged drug users who are attempting to overcome their problems,” and was a measure within the government's latitude in dealing with employees.

The court also found that the open-ended questions on Form 42 are “reasonably aimed at identifying capable employees who will faithfully conduct the Government's business.” Alito said that asking references opened-ended questions about an individual's suitability for employment takes only a few minutes, observing that “references do not have all day to answer a laundry list of specific questions.” Requiring the government to catalog all of the reasons why an individual might be unsuitable for a specific job would be “a truly daunting task,” he added.

By Lawrence E. Dubé
Laura D. Francis contributed to this report

Text of the decision can be accessed at http://op.bna.com/dlrcases.nsf/r?Open=ldue-8d9m4d.

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