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Lesson Plan – National Aeronautics and Space Administration v. Nelson

September 6th, 2010

National Aeronautics and Space Administration v. Nelson

Certiorari granted by the United States Supreme Court on March 8, 2010
Oral Arguments Scheduled for October 5 2010



The Parties

Petitioner: National Aeronautics and Space Administration (“NASA”) and the Department of Commerce
v. Respondent: Robert M. Nelson and 28 contract employees from the California Institute of Technology at Nasa’s Jet Propulsion Laboratory
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The Questions Presented

  1. Does the government violate a prospective contract employee’s right to “informational privacy” if they ask whether he or she has had counseling or treatment for illegal drugs?
  2. Does the government violate a prospective contract employee’s right to “informational privacy” when they ask the employee’s references about his or her background and work habits and outside activities?
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Case Background

NASA’s Jet Propulsion Lab & Questionnaire

Nelson and the other employees worked at NASA’s Jet Propulsion Laboratory, focusing on exploring our solar system with deep space robotics, including programs like the Mars Lander and Mars Rover.  As contract employees, NASA wanted the employees to be subject to the same personnel investigation as civil service employees in order to prevent vulnerability to terror attacks.  The personnel investigation included a questionnaire that asked the employees about any treatment or counseling that they may have received for illegal drug use within the past year.  The questionnaire further required that the employees authorize the government to seek information from any source about any negative information relevant to the employee’s work habits or activities related to their truthfulness, finances, and alcohol or drug use.  The employees filed suit, arguing that the questions amounted to a violation of their constitutional right to informational privacy.  The government maintained that these background searches are routine, and have always been a necessary part of civil service employment.
At the District Court
The plaintiffs moved for a preliminary injunction, which means that they asked the court to prevent the use of the questionnaires pending the outcome of the litigation. The district court denied this request on the grounds that the questionnaires served a legitimate government interest, and were narrowly tailored with adequate safeguards to protect the applicants’ personal information.
Opinion of the Court of Appeals
The Ninth Circuit ordered NASA to stop using certain questions from the questionnaires.  The court determined that NASA could ask about prior drug use and possession, but could not ask about any treatment the employees had received for their drug habits.  The Ninth Circuit also decided that the question asking for authorization to investigate the employees’ backgrounds violated their constitutional rights.  In the court’s view, the government had no legitimate reason to ask these questions.  The court found that these invasive questions implicated the constitutional right to informational privacy, meaning the interest in keeping personal information about oneself private.
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The Law

The Fourth Amendment to the Constitution of the United States of America

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fifth Amendment to the Constitution of the United States of America

No person shall be . . . deprived of life, liberty, or property, without due process of law.

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Relevant Precedents

Whalen v. Roe, 429 U.S. 589 (1977)

The State of New York required a centralized filing system for all prescriptions of controlled substances, including the names and addresses of the patients who received the medications.  The Court held that the law was constitutional as it contained adequate measures to protect individual privacy.  The Court stated that there are two kinds of privacy interests protected by the Constitution: the interest in avoiding disclosure of personal matters, and the interest in making personal decisions.  The Court noted, however, that certain disclosures to medical personnel were essential to modern medical practice.

Nixon v. Administrator of General Services, 433 U.S. 425 (1977)

Former President Nixon challenged an order to turn over presidential papers and tape recordings from the Oval Office.  Nixon asserted that his right to privacy was invaded by the law requiring that the papers and recordings be turned over.  The Court determined that Nixon’s right to privacy was not violated by the law.  Although he could correctly claim that papers and conversations relating to his wife, family, physician, lawyer, and clergy were protected, this was only a small fraction of his files, and they were removed through a careful screening process.

Engquist v. Oregon Department of Agriculture, 128 S.Ct. 2146 (2008)

In Engquist, a public employee filed suit alleging discrimination.  The Court held that the government has a legitimate interest in promoting efficiency and integrity in discharge of official duties, and in maintaining proper discipline.  Government employees do not lose their rights by becoming federal employees, but they must be balanced against the realities of the employment context.

Board Of County Commissioners v. Umbehr, 518 U.S. 668 (1996)

The Court held that a contract employee of the government was protected by the First Amendment against being fired for exercising his right to free speech.  In such cases, the government’s interest as contractor must be balanced against the free speech rights of the contract employee.

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Justice Voting History

This chart could help with predicting the outcome of the case and how the Justices will vote. But be
careful: a lot will depend on the facts of this case and not how someone has voted in the past. [Note: the Justices are listed in order of seniority with the Chief Justice first.]

Engquist v. Oregon Dept. of Agriculture (2008) Bd. of County Comm’rs v. Umbehr (1996)
Roberts C Not yet on Court
Scalia C C
Kennedy C NC
Thomas C C
Ginsburg NC NC
Breyer C NC
Alito C Not yet on Court
Sotomayor Not yet on Court Not yet on Court
Kagan Not yet on Court Not yet on Court
C The Justice voted that the firing was constutional.
NC The Justice voted that the firing was unconstutional.
Not yet on Court The Justice was either not yet on the Court when the case was decided.

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The Arguments

NASA (Petitioner)

The government argues that they are required by presidential directive to conduct background investigations before approving contract employees to work at federal facilities.  They have required such investigations since 1953.
The government states that the Ninth Circuit erred because informational privacy rights are limited by a government interest in gathering necessary information, even when the information may be embarrassing.  In these cases, privacy concerns can be resolved in other ways, but the government needs the information in order to know whether to trust the employee to work at a sensitive facility like the Jet Propulsion Laboratory.  With respect to the request for authorization to investigate the employee’s background by talking to references, the government says there is no expectation of privacy at all because the information has already been voluntarily revealed to a third party (the reference).

Nelson (Respondent)

The employees argue that they were compelled to either answer the questionnaire or accept the severe hardship of losing their jobs.  They point out that NASA had classified their work as low risk, and that they were already vetted before their initial hire with a criminal background and references check.
The right to informational privacy, the employees argue, protects an individual interest in avoiding disclosure of personal matters.  That information need only be disclosed if the government can show a legitimate state interest and sufficiently tailored means to obtaining that necessary information.  The questions on the form, they argue, are too broad and are designed to elicit a wide range of material that the government does not really need.
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Blog Topics

How much privacy is enough?

Is it important for employers to have the information they need to ensure that operations can be carried out safely and securely?  If so, what should employers be allowed to ask of potential employees?  How should the courts determine how much information is enough?

Couldn’t employees just quit rather than disclose private information?

If the employees really do not want to give the government this information about themselves, they can always quit their jobs.  Is that a satisfactory solution?  Perhaps the government should have more leeway in gathering information about its own employees than about ordinary citizens.  But does that give the government too much power, given that so many people today work for the government?

The right to “informational privacy” is not listed in the Constitution. Should this unenumerated right be protected?

The right to “informational privacy” is not contained in the Constitution, at least not in those words.  The Ninth Circuit relied on, among other things, the Fourth Amendment, which is reprinted for you above.  Re-read the words of the Fourth Amendment.  Is it reasonable to read the Amendment as protecting employees from answering personal questions?  Or did the court stretch too far?

Past Drug Use

Does the government need to know whether its employees used drugs in the past, even if they are not using drugs now?  Does drug use reflect on an employee’s judgment or trustworthiness?  What if someone could blackmail the employee by threatening to reveal his past drug habits unless he turned over sensitive government information?

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Additional Resources

  • Full opinion of the U.S. Court of Appeals for the Ninth Circuit
  • Docket information at the Supreme Court:  This page will be updated as more briefs are filed.
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