U.S. High Court Upholds NASA Employee Background Questionnaire

WASHINGTON, D.C. - (Mealey's) A mandatory questionnaire for National Aeronautics and Space Administration (NASA) employees is not only reasonable in light of the federal government's interests but subject to substantial protections against disclosure, the U.S. Supreme Court ruled this Jan. 19, reversing an appellate court ruling that allowed the employees to pursue privacy claims (National Aeronautics and Space Administration, et al. v. Robert M. Nelson, et al., No. 09-530, U.S. Sup.; See October 2010, Page 5).

"The questions respondents challenge are part of a standard background check of the sort used by millions of private employers.  The Government has been conducting employment investigations since the Republic's earliest days, and the President has had statutory authority to assess an applicant's fitness for the civil service since 1871.  Standard background investigations similar to those at issue became mandatory for federal civil-service candidates in 1953, and the investigations challenged here arose from a decision to extend that requirement to federal contract employees.  This history shows that the Government has an interest in conducting basic background checks in order to ensure the security of its facilities and to employ a competent, reliable workforce to carry out the people's business.  The interest is not diminished by the fact that respondents are contract employees.  There are no meaningful distinctions in the duties of NASA's civil-service and contractor employees, especially at JPL [NASA's Jet Propulsion Laboratory], where contract employees do work that is critical to NASA's mission and that is funded with a multibillion dollar taxpayer investment," Justice Samuel Anthony Alito Jr. wrote for the court.

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined in the opinion.  Justice Antonin Scalia filed an opinion concurring in the judgment.  Justice Clarence Thomas joined in Justice Scalia's opinion and filed a separate opinion of his own concurring in the judgment.  Justice Elena Kagan took no part in the consideration or decision of the case.

Twenty-eight employees of JPL 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.

The U.S. District Court for the Central District of California rejected the claims, and the employees appealed.  The Ninth Circuit granted an injunction in the case 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.  NASA appealed to the high court.

[Editor's Note:  Full coverage will be in the February issue.  In the meantime, the opinion is available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844.  Document #73-110211-001Z.  For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]

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