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Law School Case Brief

NASA v. Nelson - 562 U.S. 134, 131 S. Ct. 746 (2011)


The United States Supreme Court rejects the argument that the Government, when it requests job-related personal information in an employment background check, has a constitutional burden to demonstrate that its questions are "necessary" or the least restrictive means of furthering its interests.


The National Aeronautics and Space Administration (NASA) has a work force of both federal civil servants and Government contract employees. Respondents were contract employees at NASA's Jet Propulsion Laboratory (JPL), which was operated by the California Institute of Technology (Cal Tech). Respondents were not subject to Government background checks at the time they were hired, but that changed when the President ordered the adoption of uniform identification standards for both federal civil servants and contractor employees. The Department of Commerce mandated that contract employees with long-term access to federal facilities complete a standard background check, typically the National Agency Check with Inquiries (NACI), by October 2007. NASA modified its contract with Cal Tech to reflect the new requirement, and JPL announced that employees who did not complete the NACI process in time would be denied access to JPL and face termination by Cal Tech. The NACI process, long used for prospective civil servants, begins with the employee filling out a standard form, which asked whether an employee has “used, possessed, supplied, or manufactured illegal drugs” in the last year. The employee must also sign a release authorizing the Government to obtain personal information from schools, employers, and others during its investigation. Once the form was completed, the Government would send the employee’s references a questionnaire (Form 42) that would ask open-ended questions about whether they have “any reason to question” the employee's “honesty or trustworthiness,” or have “adverse information” concerning a variety of other matters. Subsequently, respondents brought suit, alleging that the background-check process violated their constitutional right to informational privacy. The district court declined to issue a preliminary injunction, but the Court of Appeals for the Ninth Circuit reversed, holding that the drug “treatment or counseling” question furthered no legitimate interest and was thus likely to be held unconstitutional. It also held that Form 42's open-ended questions were not narrowly tailored to meet the Government's interests in verifying contractors' identities and ensuring JPL's security, and thus, also likely violated respondents' informational-privacy rights. The United States Supreme Court granted certiorari.


  1. Did the Government have legitimate interests in conducting background-check process for its employees?
  2. Did the Government have to show that its background-check process and/or questions were the least restrictive means to meet the Government’s interests?


1) Yes. 2) No.


The Ninth Circuit’s injunction pending appeal and its findings that the challenged matters likely violated privacy rights were reversed. According to the Court, a privacy interest of constitutional significance was assumed. The Government had a strong interest in conducting the basic background checks in its capacity "as proprietor" and manager of its "internal operation," whether the employees were contract employees or civil servants. The Government did not have to show its questions were necessary or the least restrictive means of furthering its interests. Asking employees about treatment for drug use was used as a mitigating factor in determining whether to grant long-term access to federal facilities. Open-ended questions to an employee's references about any adverse information about honesty, criminal acts, financial integrity, drug or alcohol abuse, mental stability, or other matters, were reasonably aimed at identifying capable employees who would faithfully conduct the Government's business. Notwithstanding this, the Privacy Act of 1974, 5 U.S.C.S. § 552a, provided safeguards against public disclosure of the information: the records had to be relevant and necessary to accomplish a purpose authorized by law, and subject to certain exceptions, written consent was required before disclosure. The Court held that the exceptions did not show insufficient protection.

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