WASHINGTON, D.C. - (Mealey's) Government employee background
checks are not only standard practice but are also constitutional, Acting
Solicitor General Neal K. Katyal told the U.S. Supreme Court the morning of
October 5 during oral arguments in an appeal by the National Aeronautics and
Space Administration over a mandatory questionnaire for employees (National
Aeronautics and Space Administration, et al. v. Robert M. Nelson, et al.,
No. 09-530, U.S. Sup.; See August 2010, Page 22).
"Our position here is that the Government can collect
information so long as it is not disseminated in the employment context,"
Katyal argued.
Twenty-eight employees of NASA's Jet Propulsion
Laboratory sued NASA, the director of NASA, the U.S. Department of Commerce,
the secretary of Commerce and the California Institute of Technology after they
were required to complete a questionnaire seeking personal information,
including a question about any counseling they may have received, as well as a
waiver for release of information from schools, residential management agents,
employers, criminal justice agencies, retail business establishments and other
sources.
Although most of the employees worked for the laboratory
for more than 20 years and none has security clearances or access to classified
or secret material, the questionnaires were created to meet the requirements of
Homeland Security Presidential Directive 12, which requires a federal standard
for "secure and reliable forms of identification."
The 28 employees sued in the U.S. District Court for the
Central District of California, alleging that the information sought would
violate their rights to privacy. They alleged violations of the
Administrative Procedure Act, their constitutional right to informational
privacy and their Fourth Amendment rights. The District Court rejected
the claims, and the employees appealed. The Ninth Circuit granted an
injunction in the case in October and in January 2009 reversed the District
Court's ruling except with regard to the employees' Fourth Amendment claims.
However, the Ninth Circuit panel vacated its January 2009
ruling and issued a new opinion in June 2009, reaching essentially the same
conclusion allowing the employees to proceed with their informational privacy
claims. The panel also denied the petition for a panel rehearing and the
petition for a rehearing en banc as moot. The panel did, however,
leave open the possibility for NASA to file new petitions. NASA appealed
to the high court.
Arguing on behalf of the employees challenging the
questionnaire, Dan Stormer of Pasadena, Calif., told the justices that the
constitutional guarantee of "liberty" means the "[l]iberty to control
information about oneself." So although there are situations based on
need where sensitive issues may be questioned, asking employees like "the snack
bar worker . . . the bus driver [and] the gift shop operator" to answer such
invasive questions is not necessary or constitutional, Stormer argued.
[Editor's Note: Full coverage will be in the
October issue. In the meantime, the oral argument transcript is available
at www.mealeysonline.com or
by calling the Customer Support Department at 1-800-833-9844. Document
#73-101008-025T. For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]
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