jeffrey s. bucholtz - hspd12 jplhspd12jpl.org/files/03-03-08-exh-reply-further_support... ·...
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JEFFREY S. BUCHOLTZActing Assistant Attorney GeneralTHOMAS P. O’BRIENUnited States AttorneySUSAN K. RUDYAssistant Branch DirectorVESPER MEI(District of Columbia Bar)WENDY M. ERTMERJAMES C. LUHTrial AttorneysUnited States Department of JusticeCivil DivisionFederal Programs BranchP.O. Box 883 – Rm 7316Washington, DC 20044Telephone: (202) 514-4686Facsimile: (202) [email protected]
Attorneys for Federal Defendants National Aeronautics and Space Administration; Michael Griffin, Director of NASA; Department of Commerce; Carlos M. Gutierrez, Secretary of Commerce
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
Robert M. Nelson, William )Bruce Banerdt, Julia Bell, ) Case No. CV-07-05669 ODW(VBKx)Josette Bellan, Dennis V. )Byrnes, George Carlisle, Kent ) FEDERAL DEFENDANTS’ Robert Crossin, Larry R. ) EXHIBIT IN SUPPORT OF D’Addario, Riley M. Duren, ) THEIR REPLY BRIEF Peter R. Eisenhardt, Susan ) IN FURTHER SUPPORT OF THEIRD.J. Foster, Matthew P. ) MOTION TO CLARIFYGolombek, Faroujan Gorjian, )Zareh Gorjian, Robert J. Haw, )James Kulleck, Sharon L. )Laubach, Christian A. )Lindensmith, Amanda Mainzer, )Scott Maxwell, Timothy P. ) DATE: March 10, 2008McElrath, Susan Paradise, ) TIME: 1:30 p.m.Konstantin Penanen, Celeste ) COURTROOM: 11M. Satter, Peter M.B. Shames, )Amy Snyder Hale, William John ) Honorable Otis D. Wright IIWalker and Paul R. Weissman, )
)Plaintiffs, )
)v. )
)
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National Aeronautics and )Space Administration, an )Agency of the United States; )Michael Griffin, Director of )NASA, in his official )capacity only; Department of )Commerce; Carlos M. )Gutierrez, Secretary of )Commerce, in his official )capacity only; )and Does 1-100, )
)Defendants. )
)
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INDEX OF EXHIBITS
Ex. C Federal Appellees’ Petition for Rehearing or Rehearing En Banc, filed February 25, 2008
March 3, 2008 Respectfully submitted,
/s/ Vesper Mei Vesper MeiAttorney for Federal Defendants
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EXHIBIT C
Case 2:07-cv-05669-ODW-VBK Document 94-2 Filed 03/03/2008 Page 4 of 66
No. 07-56424
IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
ROBERT M. NELSON, et al.,
Plaintiffs-Appellants,
v.
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States;
MICHAEL GRIFFIN, DIRECTOR OF NASA, in his official capacity only; DEPARTMENT OF COMMERCE;
CARLOS M. GUTIERREZ, SECRETARY OF COMMERCE, in his official capacity only; CALIFORNIA INSTITUTE OF TECHNOLOGY;
and DOES 1-100,
Defendants-Appellees.
On Appeal from the United States District Court for the Central District of California
PETITION FOR PANEL REHEARING OR REHEARING EN BANC
JEFFREY S. BUCHOLTZ
Acting Assistant AttorneyGeneral
GEORGE S. CARDONAUnited States Attorney
MARK B. STERN
(202) 514-5089CHRISTOPHER J. WALKER(202) 616-5385 Attorneys, Appellate Staff
Civil Division, Room 7531 Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530-0001
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TABLE OF CONTENTSPage
INTRODUCTION AND SUMMARY. . . . . . . . . . . . . . . . . . . -1-
STATEMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . -3-
A. Statutory and Regulatory Background. . . . . . . . . -3-
B. Prior Proceedings. . . . . . . . . . . . . . . . . . -6-
REASONS WHY THE PETITION SHOULD BE GRANTED. . . . . . . . . . -7-
I. In Holding Basic Background Checks Unconstitutional, The Decision Departs From Precedent And Frustrates The Ability Of The Political Branches To Protect Government Facilities.. . . . . . . . . . . . . . . -7-
II. The Panel’s Statutory Ruling Places Wholly Unwarranted Limitations On The Government’s Ability To Undertake Basic Security Precautions To Protect Federal Facilities.. . . . -13-
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . -19-
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
STATEMENT OF RELATED CASES
Case 2:07-cv-05669-ODW-VBK Document 94-2 Filed 03/03/2008 Page 6 of 66
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TABLE OF AUTHORITIES
Cases: Page
AFL-CIO v. Department Housing & Urban Devel.,118 F.3d 786 (D.C. Cir. 1997).. . . . . . . . . . . . . . . 9
California Department of Water Resources v. FERC,489 F.3d 1029 (9th Cir. 2007).. . . . . . . . . . . . . . . 14
Carlucci v. Doe,488 U.S. 93 (1988). . . . . . . . . . . . . . . . . . . . . 16
Cole v. Young,351 U.S. 536 (1956).. . . . . . . . . . . . . . . . 14, 15, 16
In re Crawford,194 F.3d 954 (9th Cir. 1999). . . . . . . . . . . . . 7, 9, 12
Kester v. Campbell,652 F.2d 13 (9th Cir. 1981).. . . . . . . . . . . . . . . . 18
Mangels v. Pena,789 F.2d 836 (10th Cir. 1986).. . . . . . . . . . . . . . . 12
National Treasury Employees Union v. U.S. Department Of Treasury,25 F.3d 237 (5th Cir. 1994).. . . . . . . . . . . . . . 9, 11
Norman-Bloodsaw v. Lawrence Berkeley Laboratory,135 F.3d 1260 (9th Cir. 1998).. . . . . . . . . . . . . . . 11
Palko v. Connecticut,302 U.S. 319 (1937).. . . . . . . . . . . . . . . . . . . . 8
Paul v. Davis,424 U.S. 693 (1976).. . . . . . . . . . . . . . . . . 2, 7, 8
Planned Parenthood v. Lawall,307 F.3d 783 (9th Cir. 2002). . . . . . . . . . . . . . . . 10
Skinner v. R.R. Labor Executives' Association,489 U.S. 602 (1989).. . . . . . . . . . . . . . . . . . . . 11
Thorne v. City of El Segundo,726 F.2d 459 (9th Cir. 1983). . . . . . . . . . . . . . 9, 10
Tucson Woman's Clinic v. Eden,379 F.3d 531 (9th Cir. 2004). . . . . . . . . . . . . . . . 10
Case 2:07-cv-05669-ODW-VBK Document 94-2 Filed 03/03/2008 Page 7 of 66
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Vitarelli v. Seaton,359 U.S. 535 (1959).. . . . . . . . . . . . . . . . . . . . 16
Washington v. Glucksberg,521 U.S. 702 (1996).. . . . . . . . . . . . . . . . . . . 2, 8
Webster v. Doe,486 U.S. 592 (1988).. . . . . . . . . . . . . . . . . . . . 14
Whalen v. Roe,429 U.S. 589 (1977).. . . . . . . . . . . . . . . . . . . . 8
Statutes:
5 U.S.C. § 7311.. . . . . . . . . . . . . . . . . . . . . . . 35 U.S.C. § 7532.. . . . . . . . . . . . . . . . . . . . . . . 15
15 U.S.C. § 278g-3(a).. . . . . . . . . . . . . . . . . . . . 5
40 U.S.C. § 11331(c). . . . . . . . . . . . . . . . . . . . . 1840 U.S.C. § 11331(b)(1).. . . . . . . . . . . . . . . . . . . . 540 U.S.C. § 11303(b)(5)(A). . . . . . . . . . . . . . . . . . . 5
42 U.S.C. § 2455(a).. . . . . . . . . . . . . . 4, 5, 13, 14, 15
44 U.S.C. § 3543(a).. . . . . . . . . . . . . . . . . . . . . . 544 U.S.C. § 3544(a)(1)(A).. . . . . . . . . . . . . . . . . . 544 U.S.C. § 3544(a)(1)(B)(i). . . . . . . . . . . . . . . . . . 5
Regulations:
71 Fed. Reg. 29,396 (May 22, 2006). . . . . . . . . . . . . . 18
Orders:
Executive Order No. 10,450, 18 F.R. 2489 (1953).. . . . . . . 3
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United States Senior District Judge Edward C. Reed, Jr.,1
of the District of Nevada, sitting by designation.
“A ” denotes a citation to the Addendum to this petition.2
INTRODUCTION AND SUMMARY
Pursuant to Federal Rules of Appellate Procedure 35 and 40,
the government respectfully seeks rehearing of the panel’s
decision and suggests that the case warrants rehearing en banc.
The panel’s sweeping decision expands the constitutional right of
informational privacy so broadly as to cast a cloud on virtually
every form of reference check, and conflicts with decisions of
the D.C. Circuit and the Fifth Circuit.
The panel (Thompson, Wardlaw, Reed ) held that the National1
Aeronautics and Space Administration (NASA) violated the
Constitution in requiring contractor employees at the Jet
Propulsion Laboratory (JPL) to undergo the same minimal
background screening that is required of all civil service
employees in analogous nonsensitive positions. Abandoning the
analytical framework established by the Supreme Court and this
Court, the panel concluded that written governmental questions to
employees and their references, which are designed to elicit
“private information that ‘is not generally disclosed by
individuals to the public,’” must be “deemed to implicate the
right to informational privacy.” A13 (citation omitted). The2
decision has no doctrinal basis and ignores the repeated
strictures of the Supreme Court and this Court that
constitutionally protected interests in privacy and autonomy are
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Although the case came before the panel on denial of a3
preliminary injunction, it reversed the district court on thebasis of asserted errors of law. The panel did not suggest thatfurther factual development was required, or that any suchdevelopment would affect its view of the merits. Moreover, thebalancing of the equities and analysis of the merits in this casepresent identical questions, and it was on that basis that thepanel felt free to reverse the district court. The panelreasoned that plaintiffs “face a stark choice – either violationof their constitutional rights or loss of their jobs.” A16. Theperceived harm is thus coextensive with the recognition of aconstitutional right. If responding to the background check doesnot violate a constitutional privacy right, it is also does not
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limited to matters “fundamental or implicit in the concept of
ordered liberty.” Paul v. Davis, 424 U.S. 693, 713 (1976)
(internal quotation marks omitted) (privacy); see Washington v.
Glucksberg, 521 U.S. 702, 720-722 (1996) (autonomous decisions).
The panel similarly erred in holding that neither NASA’s own
organic statute nor the Federal Information Security Management
Act (FISMA) permits the agency to impose uniform background check
procedures for contractor employees and agency employees. A10-
A12. The ruling is flatly at odds with the unambiguous language
of NASA’s statutory authorization. The decision also threatens
the government’s general ability to undertake basic security
precautions by setting aside the requirements mandated by the
Commerce Department and the Office of Management and Budget
(OMB), based on the panel’s fundamental misunderstanding of
FISMA.
The panel’s ruling rests on legal errors of exceptional
importance and threatens significant consequences. We
respectfully urge that the case should be reheard en banc. 3
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result in imminent irreparable harm. The decision thus presentsquestions of law and is ripe for en banc review.
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STATEMENT
A. Statutory and Regulatory Background.
1. The California Institute of Technology (Caltech)
operates JPL, a federal facility, pursuant to a contract with
NASA as an integral part of the nation’s space program. In
contrast to the other nine NASA centers, all positions at JPL are
filled by contractors employed by Caltech. These contract
employees perform duties functionally equivalent to those of
civil service employees at other NASA centers, and have access to
NASA physical and logical systems (i.e., information technology)
similar to that of their federal employee counterparts. ER 469-
470.
In 2007, NASA amended its contract with Caltech to require
that every JPL employee undergo a National Agency Check with
Inquiries (NACI), the same background investigation required of
government civil service employees, before he or she can obtain
an identification badge needed for access to JPL’s facilities.
ER 649, 652, 658.
The NACI reflects the minimum level of background
investigation for federal employees in the competitive civil
service that has been required since the promulgation of
Executive Order No. 10,450, 18 Fed. Reg. 2,489 (1953), reprinted
as amended in 5 U.S.C. § 7311, in 1953. Standard Form 85 (SF-85)
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– “Questionnaire for Non-Sensitive Positions” – asks where an
employee or applicant has lived, worked, and gone to school.
A24-A31. The form also requires a statement as to whether the
applicant has used illegal drugs in the past year and grants
immunity from prosecution based on the applicant’s truthful
response. A30. Written inquiries, including Form 42 –
“Investigative Request for Personal Information” – are sent to
educational institutions, former employers, landlords, and
references. A32-A33. If it is determined that a candidate
should not be granted access to federal facilities, he or she is
made aware of the reasons for that conclusion and may challenge
the determination. ER 951.
2. The contract amendment reflected determinations about
appropriate security measures by NASA under the Space Act, and by
the Commerce Department, the National Institute of Standards and
Technology (NIST), and OMB under FISMA.
The Space Act provides that the NASA Administrator “shall
establish such security requirements, restrictions, and
safeguards as he deems necessary in the interest of the national
security,” and provides that “[t]he Administrator may arrange
with the Director of the Office of Personnel Management for the
conduct of such security or other personnel investigations of the
Administration’s officers, employees, and consultants, and its
contractors and subcontractors and their officers and employees,
actual or prospective, as he deems appropriate.” 42 U.S.C.
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§ 2455(a).
FISMA makes the head of each agency responsible for
“providing information security protections commensurate with the
risk and magnitude of the harm resulting from unauthorized
access, use, disclosure, disruption, modification, or destruction
of” agency information, 44 U.S.C. § 3544(a)(1)(A), and vests
special responsibilities in the OMB Director, the Secretary of
Commerce, and NIST, a non-regulatory agency within Commerce. See
44 U.S.C. §§ 3543(a), 3544(a)(1)(B)(i), 40 U.S.C. § 11331(b)(1),
40 U.S.C. § 11303(b)(5)(A), 15 U.S.C. § 278g-3(a) (collectively
giving the Secretary of Commerce authority to promulgate
compulsory information security standards in coordination with
the OMB Director, based on standards recommended by NIST).
In 2004, the Commerce Department and NIST were tasked with
responding to concerns outlined in Homeland Security Presidential
Directive 12 (HSPD-12), which sought to eliminate the “[w]ide
variations in the quality and security of forms of identification
used to gain access to secure Federal and other facilities where
there is a potential for terrorist attacks.” ER 460. The
President directed agencies to implement the order in accordance
with “guidance issued by OMB, which shall ensure compliance.” ER
460.
The resulting standards were published by the Commerce
Department in Federal Information Processing Standards (FIPS)
201-1. ER 842. The requirements for identity credentials for
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federal and contractor employees established by FIPS 201-1
include initiation of a NACI. ER 856. OMB issued guidance on
implementation of HSPD-12, specifying the times by which agencies
should complete security investigations. ER 449.
3. In 2005, NASA updated the NASA Procedural Requirements
1600.1 to incorporate FIPS 201, including the NACI requirement.
NASA security standards of this kind may be incorporated into
NASA contracts through the Federal Acquisition Regulations (FAR),
and NASA modified its contract with Caltech to standardize
security requirements between its employees and its contractors.
ER 476, 649.
B. Prior Proceedings.
Plaintiffs are scientists, engineers, and administrative
support personnel employed by JPL. ER 811. The district court
(Wright, J.) denied their motion for a preliminary injunction,
concluding that they could not establish a likelihood of success on
the merits of their constitutional and statutory claims, and that
the government had established that its use of the information
requested in SF-85 was tailored to advance its legitimate interest
in enhancing security at federal facilities. ER 18-25.
A panel of this Court (B. Fletcher, Reinhardt, Berzon) issued
a temporary injunction pending appeal. A20-A23. Following
expedited briefing, the merits panel reversed the ruling of the
district court, concluding that the background requirement was
issued without statutory authority and that it violated
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constitutional protections of informational privacy.
REASONS WHY THE PETITION SHOULD BE GRANTED
I. In Holding Basic Background Checks Unconstitutional,The Decision Departs From Precedent And Frustrates TheAbility Of The Political Branches To Protect GovernmentFacilities.
A. Re-defining the scope of constitutional protections, the
panel declared that whenever governmental questions are designed
to elicit “private information that ‘is not generally disclosed
by individuals to the public,’” then these questions “must be
deemed to implicate the [constitutional] right to informational
privacy.” A13 (quoting In re Crawford, 194 F.3d 954, 958 (9th
Cir. 1999)). On this basis, the panel held that the government
implicates constitutional privacy concerns by asking designated
references if they are aware of adverse information regarding an
employee’s “abuse of alcohol or drugs,” “financial integrity,”
“mental or emotional stability,” “general behavior or conduct,”
and “other matters.” A13; A33.
This holding casts a cloud over virtually every type of
reference check and cuts the privacy right free of its
constitutional moorings. The Supreme Court has made clear that
“[t]he personal rights found in [the] guarantee of personal
privacy must be limited to those which are ‘fundamental’ or
‘implicit in the concept of ordered liberty,” such as those
relating to “marriage, procreation, contraception, family
relationships, and child rearing and education.” Paul, 424 U.S.
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In mandating a focused historical analysis, the Court in4
Glucksberg cautioned that the fact “[t]hat many of the rights andliberties protected by the Due Process Clause sound in personalautonomy does not warrant the sweeping conclusion that any andall important, intimate, and personal decisions are soprotected.” 521 U.S. at 727.
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at 713 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
As the Court explained in Glucksberg, its analysis in determining
the scope of protected privacy interests and autonomous
decisionmaking has “been carefully refined by concrete examples
involving fundamental rights found to be deeply rooted in our
legal tradition,” an approach that “tends to rein in the
subjective elements,” and which “avoids the need for complex
balancing of competing interests in every case.” 521 U.S. at
722. The panel here made no attempt to confine the scope of
constitutionally protected interests to those “implicit in the
concept of ordered liberty,” or to undertake the precisely
focused historical inquiry mandated by Glucksberg in determining
what interests fall within the ambit of constitutional
protection.4
The impact of this departure from precedent is exacerbated
by the panel’s failure to distinguish between the interest in
avoiding disclosure of information to the government and the
interest in avoiding disclosure by the government. Informational
privacy jurisprudence has centered on the interests implicated
when the government discloses highly personal information to the
public. See Whalen v. Roe, 429 U.S. 589 (1977) (statutory
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safeguards against public dissemination of highly personal
medical information were sufficient to avoid constitutional
concerns). The panel conflated the standards applied to public
disclosures with those relevant to a governmental request for
information. The panel’s reliance on Crawford, in which the sole
issue was the re-disclosure of information to the public,
typifies this error. See 194 F.3d at 957.
In conflating these standards and in departing from settled
principles of constitutional analysis, the panel’s decision
conflicts starkly with decisions of the D.C. and Fifth Circuits
rejecting privacy-based challenges to background checks similar
to or more intrusive than the one at issue here. See AFL-CIO v.
Dep’t Housing & Urban Devel., 118 F.3d 786, 793-794 (D.C. Cir.
1997) (“[W]e hold that the individual interest in protecting the
privacy of the information sought by the government is
significantly less important where the information is collected
by the government but not disseminated publicly.”); Nat’l
Treasury Employees Union v. U.S. Dep’t Of Treasury, 25 F.3d 237,
244 (5th Cir. 1994) (noting “in determining generally the
perimeters of privacy” that the challenged questionnaire required
only disclosure “to the IRS, as their employer – not to anyone
else, and certainly not to the public”).
Indeed, Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir.
1983), is the only case cited by the panel in which privacy
interests arose from governmental questions rather than
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In Planned Parenthood v. Lawall, 307 F.3d 783 (9th Cir.5
2002), the Court upheld procedures requiring minors to seekjudicial leave to obtain an abortion. Although the decisionnoted the concerns raised by the questioning, it focused not onthe fact of a minor’s initial disclosure, but rather on thepossibility of unauthorized re-disclosure and court personnel’saccess to the minor’s petition. Id. at 790.
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governmental re-disclosure. In that case, in sharp contrast with
the present action, a job applicant was subjected to a polygraph
interrogation and asked about her sexual encounters, pregnancy,
and miscarriage, matters which, as the Court noted, go to the
heart of “such basic matters as contraception, abortion,
marriage, and family life.” Id. at 462 n.1, 467-468. Even in
Thorne, moreover, the constitutional interest in non-disclosure
merged, to some extent, with the defendant’s decision to deny
employment on the basis of the information elicited. See id. at
471 (“[R]eliance on these private non-job-related considerations
by the state in rejecting an applicant for employment violates
the applicant’s protected constitutional interests”). 5
The panel cited no cases in which questions to third party
references were held to infringe on privacy interests. This
Court has recognized a constitutional right to privacy with
respect to medical information held by a third-party health care
provider, see Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 553
(9th Cir. 2004), but no court has ever held that seeking
information from designated references for employment purposes
implicates a constitutionally protected right to privacy. The
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panel’s disregard for the nature of the asserted privacy
intrusion is highlighted by its reliance on Norman-Bloodsaw v.
Lawrence Berkeley Laboratory, 135 F.3d 1260 (9th Cir. 1998). In
contrast to the information sought here, that case involved “the
question whether a clerical or administrative worker who
undergoes a general employee health examination may, without his
knowledge, be tested for highly private and sensitive medical and
genetic information such as syphilis, sickle cell trait, and
pregnancy.” Id. at 1264.
B. The panel further erred by finding a constitutionally
protected interest implicated by a question regarding illegal
drug use and treatment thereof within the previous year. The
panel mistakenly declared that the “Supreme Court has made clear,
in the Fourth Amendment context, that individuals’ reasonable
expectations of privacy in their medical history includes
information about drug use, and, by analogy, drug treatment or
counseling.” A13 (citing Skinner v. R.R. Labor Executives’
Ass’n, 489 U.S. 602, 617 (1989)). Skinner actually held that in
the Fourth Amendment context there is an expectation of privacy
in the act of urination and in the amount of information that
chemical analysis of urine can reveal. See 489 U.S. at 617.
The Skinner Court did not remotely suggest the existence of
a privacy interest in refusing to inform a prospective government
employer of recent violations of the law, including the drug
laws. Cf. Nat’l Treasury Employees Union, 25 F.3d at 243 & n.3
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(“Surely anyone who works for the government has a diminished
expectation that his drug and alcohol abuse history can be kept
secret, given that he works for the very government that has
declared war on substance abuse”); Mangels v. Pena, 789 F.2d 836,
839 (10th Cir. 1986) (“The possession of contraband drugs does
not implicate any aspect of personal identity which ... is
entitled to constitutional protection. Validly enacted drug laws
put citizens on notice that this realm is not a private one.”)
(citations omitted).
C. Moreover, even if the background check requirement did
implicate a constitutionally protected privacy interest, it would
plainly pass constitutional muster. Even when re-disclosure
threatens to infringe on a protected privacy concern, “the right
to informational privacy . . . is not absolute,” but rather “is a
conditional right which may be infringed upon a showing of proper
governmental interest.” Crawford, 194 F.3d at 959 (internal
quotation marks omitted). NASA has done no more than require
that contract employees with long-term access to its facilities
go through the same screening process as federal employees in
comparable non-sensitive positions. See ER 766 (declaration of
JPL security coordinator stating that once within the facility,
those with “unescorted access privileges to JPL ha[ve] the
physical ability to get very close to facilities where sensitive
or classified work is conducted”).
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II. The Panel’s Statutory Ruling Places Wholly UnwarrantedLimitations On The Government’s Ability To UndertakeBasic Security Precautions To Protect FederalFacilities.
A. Invoking its authority under the Space Act, NASA
amended its Procedural Requirements 1600.1 to incorporate the
NACI requirement and other standards set out in FIPS 201,
explaining that these requirements represented “appropriate
investigation and adjudication [requirements] for reliability
prior to the issuance of permanent NASA photo-ID.” ER 511. NASA
noted that these requirements would “assist NASA Centers and
component facilities in executing the NASA security program to
protect people, property, and information” by establishing
“security program standards and specifications necessary to
achieve Agency-wide security program consistency and uniformity.”
ER 480.
The agency’s decision to adopt uniform background screening
requirements for federal employees and long-term contractor
employees falls well within the Space Act’s broad grant of
authority. The statute authorizes NASA to “establish such
security requirements, restrictions, and safeguards as [the NASA
Administrator] deems necessary in the interest of the national
security.” 42 U.S.C. § 2455(a). In addition, it empowers the
Administrator to “arrange with the Director of the Office of
Personnel Management for the conduct of such security or other
personnel investigations of the Administration’s officers,
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The statute in Webster authorized termination of an agency6
employee “whenever the Director shall deem such terminationnecessary or advisable in the interests of the United States” Id.at 600 (internal quotation marks and emphasis omitted).
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employees, and consultants, and its contractors and
subcontractors and their officers and employees, actual or
prospective, as he deems appropriate[.]” Id.
This broad language “fairly exudes deference,” Webster v.
Doe, 486 U.S. 592, 600 (1988), and does not readily admit of
judicially implied limitations. Indeed, the Court in Webster
held that similar language foreclosed “the application of any
meaningful judicial standard of review.” Id. There can be no6
doubt that NASA’s interpretation of the Space Act is, at a
minimum, reasonable – an issue that the panel did not address.
See, e.g., Cal. Dep’t of Water Res. v. FERC, 489 F.3d 1029, 1036
(9th Cir. 2007) (noting deference owed to agency’s interpretation
of an act it is charged with administering).
The panel’s conclusion that NASA may require background
investigations only with respect to employees occupying
“sensitive” positions, A12, is without anchor in the statute.
Although the statute “fairly exudes deference” to the agency, the
panel accorded none. Instead, the panel observed that the Space
Act was enacted in 1958, two years after the decision in Cole v.
Young, 351 U.S. 536 (1956), which held that an agency head’s
power to summarily suspend and remove an employee if “necessary
or advisable in the interests of national security,” under 5
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U.S.C. § 7532 (formerly 5 U.S.C. § 22-1), was limited to those
employees in “sensitive” positions who could pose “an immediate
threat of harm to the ‘national security,’” thus rendering the
normal dismissal procedures inadequate. Cole, 351 U.S. at 546-
547. The panel declared that Congress had used “identical
limiting language in the Space Act” and that this use “so soon
after Cole was decided strongly suggests that Congress expected
the term ‘national security’ to be similarly construed in this
context.” A12.
The panel’s rewriting of the statute fails at every level.
First, Congress did not include the “identical limiting language”
at issue in Cole in the Space Act. A12. The Space Act
specifically authorizes the Administrator to arrange for “such
security or other personnel investigations of the
Administration’s officers, employees, and consultants, and its
contractors and subcontractors and their officers and employees,
actual or prospective, as he deems appropriate[.]” 42 U.S.C.
§ 2455(a). This language does not reference “national security”
and has no counterpart in Cole.
Second, Cole did not purport to define the meaning of
“national security” with regard to all personnel matters. The
issue in Cole was whether the statute permitted summary discharge
of employees based on the “national security.” The Court
explained that it was “clear from the statute as a whole that
[this] term was intended to comprehend only those activities of
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the Government that are directly concerned with the protection of
the Nation from internal subversion or foreign aggression,” id.
at 544 (emphasis added), and the Court buttressed its
interpretation by reference to the legislative history, see id.
at 548.
Moreover, the Supreme Court has made clear that Cole did not
establish a general rule for determining what personnel
requirements might be in the interests of the national security,
explaining in Carlucci v. Doe, 488 U.S. 93 (1988), that Cole
turned on the “summary nature” of the power to dismiss at issue
there. Id. at 95. The Court further stated that it was
“unconvinced” that Congress intended “adherence to the standard
of Cole v. Young,” even in all cases involving a “national
security termination.” 488 U.S. at 95. See also Vitarelli v.
Seaton, 359 U.S. 535, 539 (1959) (construing Cole narrowly as
“not permit[ting] the discharge of nonsensitive employees
pursuant to procedures authorized by that Act if those procedures
were more summary than those to which the employee would have
[otherwise] been entitled”).
B. The ruling with respect to the Space Act undermines
NASA’s authority to take fundamental precautions. The panel’s
equally erroneous conclusions with regard to FISMA more broadly
threaten the government’s ability to safeguard information and
information systems.
The President, in issuing HSPD-12, tasked the Commerce
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Department and NIST with developing uniform identification
requirements for federal employees and contractors. NIST
recommended requirements for all contractor employees, the
Commerce Department approved these requirements, and OMB directed
their adoption.
The panel nevertheless concluded that the background check
requirement was issued without statutory authority on the theory
that the “NACI requirement is hardly limited to protecting
‘Federal information systems.’ Indeed, the background
investigations are required of all JPL personnel, whether or not
they have access to information systems, and therefore cannot be
entirely justified, if at all, by FISMA.” All.
The panel’s cursory conclusion is difficult to comprehend.
FISMA protects “information” as well as “information systems,”
and its concerns are not limited to persons with authorized,
electronic access to “information” or “information systems.” By
its terms, the statute is concerned with preventing “unauthorized
access,” misuse, and disruption of information and information
systems. The statute nowhere limits acceptable protective
measures to only those people with electronic access to
information systems, as the panel appears to have assumed.
The panel similarly erred in its understanding of HSPD-12
and its relation to the FISMA process. The Commerce Department
and OMB possessed independent authority under FISMA to issue the
requirements without regard to HSPD-12; the panel made no attempt
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The panel’s willingness to substitute its judgment for7
that of the agencies responsible for implementing FISMA isepitomized by its unexplained declaration that “many of thequestions in SF 85 and Form 42 seek much more information thanthat which would securely and reliably identify the employees.” A10. What constitutes secure identification depends upon thepurposes for which a credential is issued. See, e.g., 71 Fed.Reg. 29,396, 29,398 (May 22, 2006) (discussing background checkand security threat assessment required prior to issuance ofbiometric transportation security credential to merchantmariners).
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to explain its apparent assumption that statutory authority must
be reinforced by presidential directive to be valid. Nor is
there any reason to believe that the Commerce Department and OMB
– which is itself part of the Executive Office of the President –
misunderstood the President’s directive. See generally Kester v.
Campbell, 652 F.2d 13, 15 (9th Cir. 1981) (“In light of an
agency’s presumed expertise in interpreting executive orders
charged to its administration, we review such agency
interpretations with great deference.”). Moreover, if the
President considered the security measures imposed by the
Commerce Department inappropriate or inconsistent with HSPD-12,
he could have invoked his authority under FISMA to “disapprove or
modify the standards and guidelines,” prescribed by the Secretary
of Commerce. 40 U.S.C. § 11331(c).7
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