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U.S. Supreme Court Hears Arguments In Government Employee Privacy Appeal

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 Oct. 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.).

"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 of Mealey's Litigation Report: Employment Law.  In the meantime, the oral argument transcript is available at 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]

For more information, call editor Bajeerah LaCava at 610-205-1102, or e-mail her at