ROBERT M. NELSON, et al., Plaintiffs-Appellants,

Transcription

1 No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT M. NELSON, et al., Plaintiffs-Appellants, Vo 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 I-i00, 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 Attorney General GEORGE S. CARDONA United States Attorney MARK B... (202) CHRISTOPHER J. WALKER (202) Attorneys, Appellate Staff Civil Division, Room 7531 Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C

2 TABLE OF CONTENTS INTRODUCTION AND SL~MARY...-I- STATEMENT A. Statutory and Regulatory Background B. Prior Proceedings REASONS WHY THE PETITION SHOULD BE GRANTED I. In Holding Basic Background Checks Unconstitutional, The Decision Departs From Precedent And Frustrates The Ability Of The Political Branches To Protect Government Facilities II. The Panel s Statutory Ruling Places Wholly Unwarranted Limitations On The Government s Ability To Undertake Basic Security Precautions To Protect Federal Facilities CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OFSERVICE STATEMENT OF RELATED.CASES RDDENDUM

3 TABLE OF AUTHORITIES Cases: Paue 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 (gth Cir. 2007)... " Carlucci v. Doe, 488 U.S. 93 (1988) Cole v. Younq, 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) 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, II Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260 (gth Cir. 1998)...Ii Palko vo Connecticut, 302 U.S. 319 (1937).... ~... ". Paul v. Davi ~s, 424 U.S. 693 (1976)... 2, 7, 8 Planned Parenthood v. Lawall, 307 F.3d 783 (9th Cir. 2002) Skinner v. R.R. Labor Executives Association, 489 U.S. 602 (1989)... ii Thorne v. City of E1 Segundo, 726 F.2d 459 (9th Cir. 1983) Tucson Woman s Clinic v. Eden, 379 F.3d 531 (9th Cir. 2004)... 9, i0 I0 -ii-

4 Vitarelli v. Seaton, 359 U.S. 535 (1959) 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)... Statutes: 5 U.S.C U.S.C U.S.C. 278g-3 (a)... J 40 U.S.C. i1331(c) U.S.C. i1331(b) (i) U.S.C (b) (5) (A) U.S.C (a) , 5, 13, 14, U.S.C (a) U.S.C (a) (I) (A) U.S.C (a) (I) (B) (i)... 5 Regulations: 71 Fed. Reg. 29,396 (May 22, 2006) 18 Orders: Executive Order No. 10,450, 18 F.R (1953) iii-

5 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, ReedI) held that the National 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." AI3 (citation omitted).2 The decision has no doctrinal basis and ignores the repeated strictures of the Supreme Court and this Court that constitutionally protected interests in privacyand autonomy are i United States Senior District Judge Edward C. Reed, Jr., of the District of Nevada, sitting by designation. 2 "A " denotes a citation to the Addendum to this petition.

6 limited to matters ~fundamental or implicit in the concept of ordered~liberty." Paul v. Davi~, 424 U.S. 693, 713 (1976) (interna! quotation marks omitted (privacy); see Washington v. Glucksberg, 521 U.S. 702, (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. AI0- AI2. 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 fundamenta! 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 3 Although the case came before the panel on denial of a preliminary injunction, it reversed the district court on the basis of asserted errors of law. The panel did not suggest that further factual development was required, or that any such development would affect its view of the merits. Moreover, the balancing of the equities and analysis of the merits in this case present identical questions, and it was on that basis that the panel, felt free to reverse the district court. The pane! reasoned that plaintiffs ~face a stark choice - either violation of their constitutional rights or loss of their jobs." AI6. The perceived harm is thus coextensive with the recognition of a constitutional right. If responding to the background check does not violate a constitutional privacy right, it is also does not

7 result in imminent irreparable harm. The decision thus presents questions of law and is ripe for en banc review. STATEMENT A. Statutory and Requlatory Background. i. The California Institute of Technology (Caltech) operates JPL, a federal facility, pursuant to a contract with NASA as an integral part of thenation 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 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 Standard Form 85 (SF-85) -3-

8 - ~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 The contract amendment reflected determinationsabout 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. 4

9 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) (I) (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) (I) (B) (i), 40 U.S.C. i1331(b)(i), 40 U.S.C. i1303(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) ER 842. The requirements for identity credentials for

10 federal and contractor employees established by FIPS 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 In 2005, NASA updated the NASA Procedura! Requirements 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 Proceedinqs. 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 andstatutory 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 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 statutor~ authority and that it violated -6--

11 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 The Ability Of The Political Branches To Protect Government Facilities. 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." AI3 (quoting In re Crawford, 194 F.3d 954, 958 (gth 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 alcoho! or drugs," ~financial integrity," ~mental or emotional stability," ~general behavior or conduct," and ~other matters." AI3; 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." Pau!, 424 U.S. -7-

12 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 theneed 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 pri~acy 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 4 In mandating a focused historical analysis, the Court in Glucksberg cautioned that the fact "[t]hat many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected." 521 U.S. at

13 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, (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, astheir employer - not to.anyone else, and certainly not to the public"). Indeed, Thorne v. City of E1 Segundo, 726 F.2d 459 (gth Cir. 1983), is the only case cited by the panel in which privacy interests arose from governmental questions rather than --9--

14 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.l, 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 (gth 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 5 In Planned Parenthood v. Lawall, 307 F.3d 783 (gth Cir. 2002), the Court upheld procedures requiring minors to seek judicial leave to obtain an abortion. Although the decision noted the concerns raised by the questioning, it focused not on the fact of a minor s initial disclosure, but rather on the possibility of unauthorized re-disclosure and court personnel s access to the minor s petition. Id. at I0-

15 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 genera! 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 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, drugtreatment or counseling." AI3 (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 -II-

16 ("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 absolutes" 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"). -12-

17 II. The Panel s Statutory Ruling Places Wholly Unwarranted Limitations On The Government s Ability To Undertake Basic Security Precautions To Protect Federal Facilities. A. Invoking its authority under the Space Act, NASA amended its Procedural Requirements 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 federa! 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, -13 -

18 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. Dog, 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." I_jd.~ There can be no 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 (gth 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, AI2, 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. Younq, 351 U.S. 536 (1956), which held that an agency head s powerto summarily suspend and remove an employee if "necessary or advisable in the interests of national security," under 5 ~ The statute in Webster authorized termination of an agency employee "whenever the Director shall deem such termination necessary or advisable in the interests of the United States" Id. at 600 (internal quotation marks and emphasis omitted). -14-

19 U.S.C (formerly 5 U.S.C ), was limited to those employees in ~sensitive" positions who could pose Nan immediate threat of harm to the national security, " thus rendering the normal dismissal procedures inadequate. Cole, 351 U.S. at 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." AI2. 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. AI2. The Space Act specifically authori.zes 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 theirofficers and employees, actual or prospective, as he de~ms 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 -15-

20 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. Do ~e, 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 al! 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 -16-

21 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 -17-

22 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 (gth 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 d~ference."). 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. I1331(c).7 7 The panel s willingness to substitute its judgment for that of the agencies responsible for implementing FISMA is epitomized by its unexplained declaration that ~many of the questions in SF 85 and Form 42 seek much more information than that which would securely and reliably identify the employees." AI0. What constitutes secure identification depends upon the purposes for which a credential is issued. See, e.g., 71 Fed. Reg. 29,396, 29,398 (May 22, 2006) (discussing background check and security threat assessment required prior to issuance of biometric transportation security credential to merchant mariners)

23 CONCLUSION For the foregoing reasons, the case should be reheard. FEBRUARY 2008 Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General GEORGE S. CARDONA United States Attorney ~ TERN d~hristopher J. WALKER (202) Attorneys, Appellate Staff Civil Division, Room 7531 Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C

24 CERTIFICATE OF COMPLIANCE I certify the pursuant to Circuit Rule 35-4 and 40-1, the attached petition for rehearing and rehearing en banc is monospaced, has 10.5 or fewer characters per inch and contains 4,090 words, according to the count of Corel WordPerfect 12. )PHER J. WALKER

25 CERTIFICATE OF SERVICE I hereby certify that on February 25, 2008, I served an original and fifty copies of the foregoing ~Petition for Rehearing or Rehearing En Banc" by hand delivery on the Clerk for the U.S. Court of Appeals for the Ninth Circuit and two (2) copies of the brief by overnight mail, as well as an electronic copy by , on: Dan Stormer Virginia Keeny Law Offices of Hadsell & Stormer, Inc. 128 North.Fair Oaks Ave. Pasadena, California (626) Mark Holscher Alexander Pilmer Mark T. Cramer KIRKLAND & ELLIS, LLP 777 So Figueroa Street, #3700 Los Angeles, California (213) ~TOPHER J. WALKER Counsel for Appellees

26 STATEMENT OF RELATED CASES Because the order on review is interlocutory, the matter is still pending before the district court, Nelson v. NAS ~A, CV (C.D. Cal.).

27 ADDENDUM

28 ADDENDUM TABLE OF CONTENTS Merits Panel Opinion (1/11/08)... Motions Panel Order (10/11/07)... Standard Form 85 (SF-85) - Questionnaire for Non-Sensitive Positions... Form 42 - Investigative Request for Personal Information... A1 A21 A25 A33

29 FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT M. NELSON; WILLIAM BRUCE BRANERDT; JULIA BELL; JOSETTE BELLAN; DENNIS V. BYRNES; GEORGE CARLISLE; KENT ROBERT CROSSIN; LARRY R. D ADDARIO; RILEY M. DUREN; PETER R. EISENHARDT; SUSAN D.J. FOSTER; MATTHEW P. GOLOMBEK; VAROUJAN GORJIAN; ZAREH GORJIAN; ROBERT J. HAW; JAMES KULLECK; SHARLON L. LAUBACH; CHRISTIAN A. LINDENSMITH; AMANDA MAINZER; SCOTT MAXWELL; TIMOTHY P. MCELRATH; SUSAN PARADISE; KONSTANTIN PENANEN; CELESTE M. SATTER; PETER M. B. SHAMES; AMY SNYDER HALE; WILLIAM JOHN WALKER; PAUL R. WEISSMAN, Plaintiffs-Appellants, No D.C. No. CV-07,05669-ODW OPINION NATIONAL AERONAUTICS AND SPACE. ADMINISTRATION, an Agency of the United States; MICHAEL GRIFFIN, Director of NASA, in his official capacity only; UNITED STATES DEPARTMENT OF COMMERCE; 625

30 626 NELSON V. NASA CARLOS M. GUTIERREZ, Secretary of Commerce, in his official capaciu only; CALIFORNIA INSTITUTE OF TECHNOLOGY, Defendants-Appellees. Appeal from the United States District Court for the Central District of California Otis D. Wright, District Judge, Presiding Argued and Submitted December 5, Pasadena, California Filed January 11, 2008 Before: David R. Thompson and Kim McLane Wardlaw, Circuit Judges, and Edward C. Reed, Jr.,* District Judge. Opinion by Judge Wardlaw *The Honorable Edward C. Reed, Jr., Senior United States District Judge for the District of Nevada, sitting by designation. A2

31 630 NELSON V. NASA COUNSEL Dan Storme~ and Virginia Keeny, L~w Offices of Hadsell & Stormer, Inc., Pasadena, California, for the plaintiffsappellants. Mark B. Stern and Dana Martin, U.S. Department of Justice, Appellate Staff Civil Division, Washington, D:C., and Mark Holscher, R. Alexander Pilmer, and Mark T. Cramer, Kirkland & Ellis LLP, Los Angeles, California, for the defendantsappellees. WARDLAW, Circuit Judge: OPINION The named, appellants in this action ("Appellants") are scientists, engineers, and administrative support personnel at the Jet Propulsion Laboratory ("JPL"), a research laboratory run ijointly by the National Aeronautics and Space Administration ("NASA") and the California Institute of Technology ("Caltech"). Appellants sued NASA, Caltech, and the Department of Commerce (collectively "Appellees"), challenging NASA s recently adopted requirement that "low risk" contract employees like themselves submit to in-depth background investigations. The district court denied Appellants request for a preliminary injunction, finding they were unlikely to succeed on the merits and unable to demonstrate irreparable harm. Because Appellants raise serious legal and constitutional questions and because the balance of hardships tips sharply in their favor, we reverse and remand. JPL is located on federally owned land, but operated entirely by Caltech pursuant to a contract with NASA. Like A3

32 NELSON V. NASA 631 all JPL personnel, Appellants are employed by Caltech, not the government. Appellants are designated by the government as "low risk" contract employees. They do not work with classified material. Appellants contest NASA s newly instated procedures requiring "low risk" JPL personnel to yield to broad background investigations as a condition of retaining access to JPL s facilities. NASA s new policy requires 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. The NACI investigation requires the applicant to complete and submit Standard Form 85 (SF 85), which asks for (1)background information, including residential, educational, employment, and military histories, (2)the names of three references that "know you well," and (3) disclosure of any illegal drug use within the past year, along with any treatment or counseling received for such use. This information is then checked against four government databases: (1) Security/ Suitability Investigations. Index; (2)the Defense Clearance and Investigation Index; (3) the FBI Name Check; and (4) the FBI National Criminal History Fingerprint Check. Finally~ SF 85 requires the applicant to sign an "Authorization for Release of Information" that authorizes the government to collect "any information relating to [his or her] activities from schools, residential management agents, employers, criminal justice agencies, retail business establishments, or other sources of information." The information sought "may include, but is not limited to, [the applicant s] academic, residential, achievement, performance, attendance, disciplinary, employment history, and criminal history record information. 1 The record is vague as to the exact extent to and manner in 1The form also notes that "for some information, a separate specific release will be needed," but does not explain what types of information will require a separate release.

33 632 NELSON v. NASA which the government will seek this information, but it is undisputed that each of the applicants references, employers, and landlords will be sent an "Investigative Request for Personal Information" (Form 42), which asks whether the recipient has "any reason to question [the applicant"s] honesty or trustworthiness" or has "any adverse information about [the applicant s] employment, residence, or activities" concerning "violations of law," "financial integrity," "abuse of alcohol and/or drugs," "mental or emotional stability," "general behavior or conduct," or "other matters." The recipient is asked to explain any adverse information noted on the form. Once the information has been collected, NASA and the federal Office of Personnel Management determine whether the employee is "suitable" for continued access to NASA s facilities, though the exact mechanics of this suitability determination are in dispute? Since it was first created in 1958, NASA, like all other federal agencies, has conducted NACI investigations of its civil servant employees but not of its contract employees. Around the year 2000, however, NASA "determined that the incomplete screening of contractor employees posed a security vulnerability for the agency" and began to consider requiring NACI investigations for contract employees as well. In 2Appeilants claim that the factors used in the suitability determination were set forth in a document, temporarily posted on JPL s internal website, labeled the "Issue Characterization Chart." The document identifies within categories designated "A" through "D" "[i]nfrequent, irregular, but deliberate delinquency in meeting financial obligations," "[p]attem of irresponsibility as reflected in... credit history," "carnal knowledge," "sodomy," "incest,... abusive language," "unlawful assembly," "attitude," "homosexuality... when indications are present of possible susceptibility to coercion or blackmail," "physical health issues," "mental, emotional, psychological, or psychiatric issues,... issues.., that relate to an associate of the. person under investigation," and "issues... that relate to a relative of the person under investigation." NASA neither concedes nor denies that these factors are considered as part of its suitability analysis; instead, it suggests that Appellants have not sufficiently proved that such factors will play a role in any individual case.

34 NEI~SON v. NASA 633 November 2005, revisions to NASA s Security Program Procedural Requirements imposed the same baseline NACI investigation for all employees, civil servant or contractor. These changes were not made applicable to JPL employees until January 29, 2007, when NASA modified its contract with Caltech to include the requirement. Caltech vigorously opposed the change, but NASA invoked its contractual right to unilaterally modify the contract and directed Caltech to comply immediately with the modifications. Caltech subsequently adopted a policy--not required by NASA--that all JPL employees who did not successfully complete the NACI process so as to receive a federal identification badge would be deemed to have voluntarily resigned their Caltech employment. On August 30, 2007, Appellants filed suit alleging, both individually and on behalf of the class of JPL employees in non-sensitive or "low risk" positions, that NASA s newly imposed background investigations are unlawful. Appellants bring three primary claims: (1) NASA and the Department of Commerce (collectively "Federal Appellees") Violated the Administrative Procedure Act ("APA") by acting without statutory authority in imposing the investigations on contract employees; (2)the investigations violate their constitutional right to informational privacy;.and (3) the investigations constitute unreasonable searches prohibited by the Fourth Amendment. On September 24, 2007, Appellants moved for a preliminary injunction against the new policy on the basis that any JPL worker who failed to submit an SF 85 questionnaire by October 5, 2007 would be summarily terminated. The district court denied Appellants request. It divided Appellants claims into two categories--those challenging the SF 85 questionnaire itself and those challenging the grounds upon which an employee might be deemed unsuitable--and found that the challenges to the suitability determination were highly speculative and unripe for judicial review. The court rejected

35 634 NELSON v. NASA Appellants APA claim, finding statutory support for the investigations in the National Aeronautics and Space Act of 1958 (the "Space Act"), which allows NASA to establish security requirements as deemed "necessary in the interest of the national security." 42 U.S.C. 2455(a). Limiting its review to the SF 85 questionnaire, the court found the form implicated the constitutional right to informational privacy but was narrowly tailored to further the government s legitimate security interest. Finally, the court rejected Appellants Fourth Amendment argument, holding that a background investigation was not a "search" within the meaning of the Fourth Amendment. After concluding that Appellants had little chance of success on the merits, the district court also found that they could not demonstrate irreparable injury, because any unlawful denial of access from JPL could be remedied post hoc through compensatory relief. On appeal, a motions panel of our court granted a temporary injunction pending a merits determination of the denial of the preliminary injunction. Nelson v. NASA, 506 F.3d 713 (9th Cir. 2007). The panel concluded that the information sought by SF 85 and its waiver requirement raised serious privacy issues and questioned whether it was narrowly tailored to meet the government s legitimate interest in ascertaining the identity of its low-risk employees. Id. at 716. The panel further found that "[t]he balance of hardships tips sharply in favor of [A]ppellants," who risk losing their jobs pending "appeal, whereas there was no exigent reason for performing the NACI investigations during the few months pending appeal given that "it has been more than three years since the Presidential Directive [upon which the government relies] was issued." Id. at 716. II To obtain preliminary injunctive relief, Appellants must demonstrate either "(1) a likelihood of success on the merits and the possibility of irreparable injury; or (2)that serious

36 NELSON V. NASA 635 questions going to the merits were raised and the balance of hardships tips sharply in its favor." Walczak v. EPL Prolong, Inc:, 198 F.3d 725, 731 (9th Cir. 1999). The two prongs are not separate tests but rather "extremes of a single continuum," so "the greater the relative hardship to [the party seeking the preliminary injunction], the less probability of success must be shown." Id. (internal quotation marks omitted). Upon review of the merits of the district court s denial of preliminary injunctive relief, we find ourselves in agreement with the motions panel. Appellants have demonstrated serious questions as to certain of their claims on which they are likely to succeed on the merits, and the balance of hardships tips sharply in their favor. We therefore conclude that the district court abused its discretion in denying Appellants motion for a preliminary injunction, and we reverse and remand. A. Standing and Ripeness The district court found that the justiciability doctrines of ripeness and standing precluded consideration of Appellants claims, except as they concerned the SF 85 questionnaire and associated waiver. We agree with the district court that Appellants claims concerning the suitability determination are unripe and unfit for judicial review; however, the district court misconstrued Appellants informational privacy claim, viewing it as limited to the SF 85 questionnaire alone. [1] To enforce Article III s limitation of federal jurisdiction to "cases and controversies," plaintiffs must demonstrate both standing and ripeness. To demonstrate standing, a plaintiff "must have suffered an injury in fact --an invasion of a legally protected interest which is (a) concrete and particularized,... and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotation marks omitted). The ripeness doctrine similarly serves "to prevent the courts, through avoidance of premature adjudication, from entangling

37 636 NELSON V. NASA themselves in abstract disagreements over administrative policies" and requires assessing " both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. " Ass n of Am. Med. Colls. v. United States, 217 F.3d 770, (9th Cir. 2000) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, (1967)). [2] In analyzing justiciability, the district court distilled Appellants claims into two basic arguments: (1) "that SF 85 is overly broad and intrusive considering the low-risk nature of [appellants ] jobs at JPL" and (2) "that JPL s internal policy, which lists various grounds upon which an employee can be determined unsuitable for employment, is unconstitutional." We agree that challenges to the suitability determination are. unripe because the record does not sufficiently establish how the government intends to determine "suitability" accordingly, any claims are "strictly speculative." We also agree that Appellants have standing to challenge the SF 85 questionnaire, and because "it is undisputed that if [Appellants] do not sign the SF 85 waiver by October 5, 2007," they will "be deemed to have voluntarily resigned," there exists a "concrete injury that is imminent and not hypothetical" and thus ripe for review. [3] However, the district court overlooked Appellants challenges to the government.investigation that will result from the SF 85 requirement that the applicant sigh an "authorization for release of information." On its face, this waiver authorizes the government to collect "any information.. from schools, residential management agents, employers, criminal justice agencies, retail business establishments, or other sources of information" "includ[ing], but.., not limited to,.., academic, residential, performance, attendance, disciplinary, employment history, and criminal history record information." It is uncontested that as a result of this authorization, the government Office of Personnel Management will send out "Investigative Request[s] for Personal Information," Form 42, to references, employers, and landlords. This form

38 NELSON V. NASA 637 seeks highly personal information using an open-ended questioning technique, including asking for "any adverse information" at all or any "additional information which.., may have a bearingon this person s suitability for government employment." Any harm that results from Form 42 s dissemination and the information consequently provided to the government will be concrete and immediate. [4] Because Federal Appellees freely admit that Form 42 will be used in NASA s background investigations, Appellants have standing to challenge Form 42 s distribution and solicitation of private information, and the issues raised in these challenges are ripe for review. The district court erred by excluding Form 42 claims from its analysis of Appellants likelihood of success on the merits. B. APA Claims Appellants argue that Federal Appellees violated the APA by imposing background investigations on contract employees without any basis in executive order or statute. In response, Federal Appellees find authorization for their program in three statutory and regulatory sources: The Homeland Security Presidential Directive 12 ("HSPD 12"), the Federal Information Security Management Act ("FISMA"), and the Space Act. [5] Both HSPD 12 and FISMA fail on their face to authorize the broad background investigations NASA has imposed on JPL personnel. HSPD 12 creates a Federal policy of "establishing a mandatory Government-wide standard for secure and reliable forms of identification issued by the Federal Government to its employees and contractors (including contractor employees)." However, many of the questions in SF 85 and Form 42 seek much more information than that which would securely and reliably identify the employees. Nelson, 506 F.3d at 716. Similarly, FISMA gives the Secretary of Commerce authority to "prescribe standards and guidelines AIO

39 638 NELSON V. NASA pertaining to Federal information systems," 40 U.S.C (a)(1) (2002), but NASA s 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. That neither HSPD 12 nor FISMA authorize NASA s actions is reinforced by Federal Appellees own declarations that "the decision to require at a minimum a NACI for NASA contractor employees dates back to the 2000 to 2001 timeframe," well before either FISMA was passed in 2002 or HSPD 12 was issued in [6] The Space Act, at first glance, appears more promising; however, it too fails to justify requiring these open-ended investigations of "low-risk" contract employees. The Space Act authorizes the NASA Administrator to "establish such security requirements, restrictions, and safeguards as he deems necessary in the interest of the national security." 42 U.S.C. 2455(a) (1958). The district court found that this language "clearly gives NASA the authority to implement background investigations as part of the security screening of contractors;" however, it ignored the statute s limiting language that the security programs established be "deem[ed] necessary in the interest of the national security." This phrase must be read in light of Cole v. Young, 351 U.S. 536 (1956), decided just two years before.the Space Act was passed. In Cole, the Supreme Court considered a statute that gave certain government officials the power to summarily dismiss employees "when deemed necessary in the interest of the national security." Id. at 538 (internal quotation marks omitted). The Court noted: While that term is not defined in the Act, we think it clear from the statute as a whole that that term was intended to comprehend only those activities of the Government that are directly concerned with the protections of the Nation from internal subversion or All

40 NELSON V. NASA 639 foreign aggression, and not those which contribute to the strength of the Nation only through their impact on the general welfare. Id. at 544. The Court found it clear "that national security was not used in the Act in an all-inclusive sense, but was intended to refer only to the protection of sensitive activities. It follows that an employee can be dismissed in the interest of the national security under the Act only if he occupies a sensitive position... " Id. at 551. We agree with Appellants that the use of identical limiting language in the Space Act so soon after Cole was decided strongly suggests that Congress expected the terln "national security" to be similarly construed in this context. Therefore, the Space Act s authorization to establish "security requirements, restrictions, and safeguards" applies to "only those activities of the Government that are directly concerned with the protections of the Nation from internal subversion or foreign aggression," id. at 544, and background investigations can be deemed "in the interest of the national security" "only if [the target of the investigation] occupies a sensitive position," id. at 551. Here, it is undisputed that the Appellants do not occupy "sensitive" positions; they are low-risk employees. Because the district court s reading of the Space Act failed to account for the Supreme Court s holding in Cole, its conclusion as to Appellants likelihood of success as to their APA claim was erroneous. C. Informational Privacy Claims [7] The district court similarly underestimated the likelihood that Appellants would succeed on their informational privacy claim. We have repeatedly acknowledged that the Constitution protects an "individual interest in avoiding disclosure of personal matters." In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999). This interest covers a wide range of personal matters, including.sexual activity, Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983) (holding that question- AI2

41 640 NELSON V. NASA ing police applicant about her prior sexual activity violated her right to informational privacy), medical information, Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998) ("The constitutionally protected privacy interest in avoiding disclosure of personal matters clearly encompasses medical information and its confidentiality"), and financial matters, Crawford, 194 F.3d at 958 (agreeing that public disclosure of social security numbers may implicate the right to informational privacy in "an era of rampant identity theft"). If the government s actions compel disclosure of private information, it "has the burden of showing that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet the legitimate interest." Crawford, 194 F.3d at 959 (internal quotation marks omitted). [8] The district court correctly concluded that the requested information in this case is sufficiently private to implicate the right to informational privacy. SF 85 requires the applicant to disclose any illegal drug use within the past year, along with any treatment or counseling received. 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, Skinner v. R.R. Labor Executives Ass n, 489.U.S. 602, 617 (1989), and, by analogy, drug treatment or counseling. Moreover, Form 42 inquiries distributed as part of the NACI--omitted from the district court s analysis as a result of its erroneous ripeness holding--are even more probing. Form 42 solicits "any adverse information" concerning "financial integrity," "abuse of alcohol and/or drugs," "mental or emotional stability," and "other matters." These open-ended questions are designed to elicit a wide range of adverse, private information that "is not generally disclosed by individuals to the public," Crawford, 194 F.3d at 958; accordingly, they must be deemed to implicate the right to informational privacy. [9] Considering the breadth of Form 42 s questions, it is difficult to see how they could be narrowly tailored to meet AI3

42 NELSON V. NASA 641 any legitimate need, much less the specific interests that Federal Appellees have offered to justify the new requirement. Asking for "any adverse information about this person s employment, residence, or activities" may solicit some information relevant to "identity," "national security," or "protecting federal information systems," but.there are absolutely no safeguards in place to limit the disclosures to information relevant to these interests. Instead, the form invites the recipient to reveal any negative information of which he or she is aware. There is nothing "narrowly tailored" about such a broad inquisition. [lll] Finally, the context in which the written inquiries are posed further supports Appellants claim. In Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983), we focused not only on the private nature of questions asked, but also on the lack of standards governing the inquiry. We held that questioning a female police applicant about her past sexual relations with another officer in the department violated her constitutional right to informational privacy, id. at 468, finding that many of the questions posed went beyond any relevant lines of questioning, id. at More importantly, we noted that the city had not set any standards for inquiring about the private information. Id. at 470. "When the state s questions directly intrude on the core of a person s constitutionally protected privacy and associational interests..., an unbounded, standardless inquiry, even if founded upon a legitimate state interest, cannot withstand the heightened scrutiny with which we must view the state s action." Id. In this case, the government s questions stem from SF 85 s extremely broad authorization, allowing it "to obtain any information" from any source, subject to other releases being necessary only in some vague and unspecified contexts. Federal Appellees have steadfastly refused to provide any standards narrowly tailoring the investigations to the legitimate interests they offer. Given that Form 42 s 0pen-ended and highly private questions are authorized by this broad, standardless waiver and do not appear narrowly tailored to any

43 642 N~.LsoN v. NASA legitimate government interest, the district court erred in finding that Appellants were unlikely to succeed on their informational privacy claim. ~ D. Fourth Amendment Claims We agree with the district court s conclusion that Appellants are unlikely to succeed on their Fourth Amendment claims. The government s actions are not likely to be deemed "searches" within the meaning of the Fourth Amendment. An action to. uncover information is considered a "search" if the target of the search has a "reasonable expectation of privacy" in the information being sought, meaning a "subj ective expectation of privacy.., that society is prepared to recognize as reasonable." United States v. Diaz-Castaneda, 494 F.3d 1146, 1151 (9th Cir. 2007) (citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). Under our Fourth Amendment jurisprudence, one does not have a reasonable expectation of privacy in one s information merely because that information is of a "private" nature; instead, such an otherwise reasonable expectation can evaporate in any ofseveral ways. See, e.g., United States v. Miller, 425 U.S. 435, 443 (1976) (holding that there is no reasonable expectation of privacy in bank records because the information was voluntarily disclosed to the bank). [11] The Form 42 questionnaire sent to third parties cannot be considered a "search," because "the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities... " Miller, 425 U.S. at 443. This principle has its roots in Hoffa v. United States, 385 U.S. 293 (1966), and United States v. White, 401 U.S. 745 (1971), both of which dealt with the government s use of confidential informants and held that the Fourth Amendment "affords no protection to a wrongdoer s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. " White, 401 U.S. at 749 (quoting Hoffa, 385 U.S. at 302). In Miller, the AI5

44 NELSON V. NASA 643 Supreme Court held that the Fourth Amendment did not protect subpoenaed bank records, seemingly extending the Hoffa/ White principle to cover all information knowingly disclosed to the government by a third party. Under Miller, therefore, written inquiries sent to third parties, no matter how private the subject of their questioning, cannot be considered "searches." [12] Similarly, the questions posed directly to the applicant on the SF 85 questionnaire are also unlikely to be considered Fourth Amendment "searches," because that Amendment has not generally been applied to direct questioning. Instead, historically, when "the objective is to obtain testimonial rather than physical evidence, the relevant constitutional amendment is not the Fourth but the Fifth." Greenawalt v. Ind. Dep t of Corr., 397 F.3d 587, 591 (7th Cir. 2005). As Judge Posner notes in Greenawalt, applying the Fourth Amendment to direct questioning would force the courts to analyze a wide range of novel contexts (e.g., courtroom testimony, police witness interviews, credit checks, and, as here, background checks) under a complex doctrine, with its cumbersome warrant and probable cause requirements and their myriad exceptions, that was designed with completely different circumstances in mind. Id. at Moreover, declining to extend the Fourth Amendment to direct questioning will by no means leave individuals unprotected, as such contexts will remain governed by traditional Fifth and Sixth Amendment interrogation rights and the right to informational privacy described above. See id. at E. Balance of Hardships [131 The balance of hardships tips sharply toward Appellants, who face a stark choice--either violation of their constitutional rights or loss of their jobs. The district court erroneously concluded that Appellants will not suffer any irreparable harm because they could be retroactively, compensated for any temporary denial of employment. It is true that AI6

45 644 NELSON V. NASA "monetary injury is not normally considered irreparable," L.A. Mere l Coliseum Comm "n v. Nat l Football League, 634 F.2d 1197, 1202 (9th Cir. 1980), and the JPL employees who choose to give up their jobs may later be made whole financially if the policy is struck down. However, in the meantime, there is a substantial risk that a number of employees will not be able to finance such a principled position and so will be coerced into submitting to the allegedly unconstitutional NACI investigation. Unlike monetary injuries, constitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm. See Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997). Morever, the loss of one s job does not carry merely monetary consequences; it carries emotional damages and stress, which cannot be compensated by mere back payment of wages. [14] On the other side of the balance, NASA has not demonstrated any specific harm that it will face if it is enjoined for the pendency of the adjudication from applying its broad.investigatory scheme to "low risk" JPL contract employees, many of whom have worked at the laboratory for decades. As Caltech argues, JPL has successfully functioned without any.background investigations since the first contract between NASA and JPL in 1958, so granting injunctive relief would make NASA no worse off than it has ever been. Moreover, an injunction in this case would not affect NASA s ability to investigate JPL personnel in "sensitive positions," significantly undercutting any lingering security fears. Finally, we note that NASA has taken years to implement NACI at JPL, a fact we construe as weakening any.urgency in imposing the investigations before Appellants claims are fully adjudicated on their merits. III Caltech separately argues that any injunctive relief should not encompass it because, as a private actor, it cannot be held liable for constitutional violations that arise from the AI7

46 NELSON V. NASA 645 government-imposed background investigations.. Caltech is correct that there exists a "presumption that private conduct does not constitute government action." Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999). This presumption is rebutted, however,, when a sufficient nexus "make[s] it fair to attribute liability to the private entity as a governmental actor. Typically, the nexus consists of some willful participation in a joint activity by the private entity and the government." Id. at 843 (emphasis added). [13] Caltech notes that it initially opposed the new background investigations, which are conducted entirely by NASA and other government agencies; therefore, it claims that the investigations are not "joint activities" and Caltech is not a "willful participant." We have some sympathy for this argument, and if Caltech had done nothing more than abide by the contract terms unilaterally imposed by NASA, we might agree with its position. Here, however, the record is clear that Caltech did do more--it established, on its own initiative, a policy that JPL employees who failed to obtain federal identification badges would not simply be denied access to JPL, they would be terminated entirely from Caltech s employment. This decision does not necessarily render Caltech liable as a governmental actor, but it raises serious questions as to whether the university has in fact now become a willful and joint participant in NASA s investigation program, even though it was not soinitially. Caltech s threat to terminate non-compliant employees is central to the harm Appellants face and creates the coercive environment in which they must choose between their jobs or their constitutional rights. Moreover, with the government enjoined, Caltech faces no independent harm to itself, so the balance of hardships tips overwhelmingly in Appellants favor. Therefore, we hold that preliminary injunctive relief should apply both to Caltech and to Federal Appellees. IV Appellants have raised serious questions as to the merits of their informational privacy and APA claims, and the balance AI8

47 646 NELSON V. NASA of hardships tips sharply in their favor. The district court s denial of the preliminary injunction was based on errors of law and hence was an abuse of discretion. Accordingly, we reverse and remand with instructions to fashion preliminary injunctive relief consistent with this opinion. REVERSED and REMANDED. AI9

48 FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT M. NELSON; WILLIAM BRUCE BANERDT; JULIA BELL; JOSETTE BELLAN; DENNIS V. BYRNES; GEORGE CARLISLE; KENT ROBERT CROSSIN; LARRY R. D ADDARIO; RILEY M. DUREN; PETER R. EISENHARDT; SUSAN D.J. FOSTER; MATTHEW P. GOLOMBEK; VAROUJAN GORJ~AN; ZAREH GORJIAN; ROBERT J. HAW; JAMES KULLECK; SHARLON L. LAUBACH; CHRISTIAN A. LINDENSMITH; AMANDA MAINZER; SCOTT MAXWELL; TIMOTHY P. MCELRATH; SUSAN PARADISE; KONSTANTIN PENANEN; CELESTE M. SATTER; PETER M. B. SHAMES; AMY SNYDER HALE; WILLIAM JOHN WALKER; PAUL R. WEISSMAN, Plaintiffs-Appellants, No D.C. No. CV ODW Central District of California, Los Angeles ORDER

49 14096 NELSON V. NASA No NATIONAL AERONAUTICS AND SPACE " ADMINISTRATION, an Agency of the United States; MICHAEL GRIFFIN, Director of NASA, in his official capacity only; UNITED STATES DEPARTMENT OF CO, MMgRCE; CARLOS M. GuTmv, m~z, Secretary of Commerce, in his official capacity only;.california INSTITUTE OF TECHNOLOGY, Defendants-Appellees. Filed October 11, 2007 Before: Betty B. Fletcher, Stephen Reinhardt and Marsha S. Berzon, Circuit Judges. ORDER Appellants motion for an injunction pending appeal is granted. Appellants raise serious legal and constitutional questions, and the balance of hardships tips sharply in their favor. See Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983), rev d in part on other grounds, 463 U.S. 1328, 464 u.s. 879 (1983). Appellants raise various legal and constitutional challenges to appellees requirement that appellants each complete a questionnaire and execute a waiver for release of information. The questionnaire requires some information to which appellants do not object, such as appellant s name, date of birth, place of birth, and social security number. However, the questionnaire also includes inquiries to which appellants do object, A21

50 NELSON V. NASA including an inquiry about counseling they may have received. Appellants also object to the general waiver for release ofinformation on the ground that it is overly broad and is not limited to information pertinent to their identity. Appellees" questionnaire and waiver were adopted to implement Homeland Security Presidential Directive 12 (HSPD-12), which requires the promulgation of a federal standard for "secure and reliable forms of identification." Appellees interest in obtaining the completed forms for the purpose of investigating the identity of appellants is questionable, as the information that may be obtained goes far beyond that purpose. The waiver for release of information form authorizes appellees to perform a background investigation "to obtain any information relating to activities from schools, residential management agents, employers, criminal justice agencies, retail business establishments, or other sources of information." Most appellants have worked for the Jet Propulsion Laboratory for over twenty years; none are required to have security clearances, as none have access to classified or secret material. All appellants have been designated "low risk" employees. Because of the nature of the information subject to which the waiver applies, serious privacy concerns arise. This court has recognized the right to informational privacy. To justify actions infringing upon the right, the government must show that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet that interest. See In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999); see also Whalen v. Roe, 429 U.S. 589, (1977). The balance of hardships tips sharply in favor of appellants because if appellants do not complete the questionnaires for non-sensitive positions and the waivers for release of information, they are scheduled-to lose their jobs before the appeal will be heard. On the other side of the scale, there is no emergency as to appellees need for the answers to the question- A22

51 14098 NELSON v. NASA naires or for the execution of the waiver forms during the less than two months remaining before the case will be argued; it has been more than three years since the Presidential Directive the government is relying upon was issued. Moreover, the need for the information to be collected is questionable in general, given the absence of any apparent relationship between its collection and the production, of reliable identification cards for these employees. Accordingly, the injunction granted by this court on October 5, 2007 will continue in effect pending an expeditious appeal. Appellants motion for a stay of district court proceedings is denied. The briefing schedule previously established remains in effect. The Clerk shall calendar this appeal during the week of December 3-7, 2007, in San Francisco or Pasadena, California. A23

52 PRINTED FOR ADMINISTRATIVE OFFICE--U.S. COURTS BY THOMSON/WEST--SAN FRANCISCO The summary, which does not constitute a part of the opinion of the court, is copyrighted 2007 Thomson/West.

53 Standard Form 85 Revised September 1995 U.S. Office of Personnel Management 5 CFR Parts 731 and 736 Questionnaire for Non-Sensitive Positions Form approved: OMB No NSN Follow instructions fully or we cannot process your form. Be sure to sign and date the certification statement on Page 5 and the release on Page 6. If you have any questions, call the office that gave you the form. Purpose of this Form The U.S. Government conducts background investigations to establish that applicants or incumbents either employed by the Government or working for the Government under contract, are suitable for the job. Information from this form is used primarily as the basis for this investigatio.n. Complete this form only after a conditional offer of employment has been made. Giving us the information we ask for is voluntary. However, we may not be able to complete your investigation, or complete it in a timely manner, if you don tgive us each item of information we request. This may affect your placement or employment prospecis. Authority to Request this Information The U.S. Government is authorized to ask for this information under " Executive Order 10577, sections 3301 and 3302 of title 5, U.S. Code; and parts 5, 731, and 736 of Title 5, Code of Federal Regulations. Your Social Security Number is needed to keep records accurate, because other people may have the same name and birth date. Executive Order 9397 also asks Federal agencies to use this number to help identify individuals in agency records. 2. Type or legibly print your answers in black ink (if your form is not legible, it will not be accepted). You may also be asked to submit your form in an approved electronic format. 3. All questions on this form must be answered. If no response is necessary or applicable, indicate this on the form (for example, enter "None" or "N/A"). If you find thai you 6annot repbrt an exact date, approximate or estimate the date to the best of your ability and indicate this by marking "APPROX." or "EST." 4. Any changes that you make to this form after you sign it must be initialed and dated by you. Under certain limited circumstances, agencies may modify the form consistent with your intent. 5. You must use the State codes (abbmviations).listed on the back of this page when you fill out this form. Do not abbreviate the names of cities or foreign countries. 6. The 5-digit postal ZIP codes are needed to speed the processing of your investigation. The office that provided the form will assist you in completing the ZIP codes. The Investigative Process Background investigations are con~tucted using your responses on this form and on your Declaration for Federal Employment (OF 306) to develop information to show whether you are reliable, trustworthy, and of good conduct and character. Your current employer must be contacted as part of the investigation, even if you have previously indicated on applications or other forms that you do not want this. Instructions for Completing this Form 7. All telephone numbers must include area codes. 8. All dates provided on this form must be in Month/Day/Year or Month/Year format. Use numbers (1-12) to indicate months. For example, June 10, 1978, should be shown as Whenever "City (Country)" is shown in an address block, also provide in that block the name of the country when the address is outside the United States. 1. Follow the instructions given to you by the person who gave you the form and any other clarifying instructions furnished by that person to assist you in completion of the form. Find out how many copies of the form you are to turn in. You must sign and date, in black ink, the original and each copy you submit. A If you need additional space to list your residences or employments/self-employments/unemployment or education, you should use a continuation sheet, SI~ 86A. If additional space is needed to answer other items, use a blank piece of paper. Each blank piece of paper you use must contain your name and Social Security Number at the top of the page.

54 Final Determination on Your Eligibility Final determination on your eligibility for a position is the responsibility of the Office of Personnel Management or the Federal agency that requested your investigation. You may be provided the opportunity personally to explain, refute, or clarify any information before a final decision is made. Penalties for Inaccurate or False Statements The U.S. Criminal Code (title 18, section 1001) provides that knowingly falsifying or concealing a material fact is a felony which may result in fines of up to $10,000, and/or 5 years imprisonment, or both. In addition, Federal agencies generally fire, or disqualify individuals who have materially and deliberately falsified these forms, and this remains a part of the permanent record for future placements. Your trustworthiness is a very important consideration in deciding your suitability. Your prospects of placement are better if you answer all questions truthfully and completely. You will have adequate opportunity to explain any information you give us on the form and to make your comments part of the record. Disclosure of Information The information you give us is for the purpose of determining your suitability for Federal employment; we will protect it from unauthorized disclosure. The collection, maintenance, and disclosure of background investigative information is governed by the Privacy Act. The agency which requested the investigation and the agency which conducted the investigation have published notices in the Federal Register describing the systems of records in which your records will be maintained. You may obtain copies of the relevant notices from the person who gave you this form. The information on this form, and information we collect during an investigation may be disclosed without your consent as permitted by the Privacy Act (5 USC 552a(b)) and as follows: 1. To the Depadment of Justice when: (a) the agency or any component thereof; or (b) any employee of the agency in his or her official capacity; or (c) any employee of the agency in his or her individual capacity where the Department of Justice has agreed to represent the employee; or (d) the United States Government, is a party to litigation or has interest in such litigation, and by careful review, the agency determines that the records are both relevant and necessary to the litigation and the use of such records by the Department of Justice is therefore deemed by the agency to be for a purpose that is compatible with the purpose for which the agency collected the records. 2. To a court or adjudicative body in a proceeding when: (a) the agency or any component thereof; or (b) any employee of the agency in his or her official capacity; or (c) any employee of the agency in his or her individual capacity where the Department of Justice has agreed to represent the employee; or (d) the United States Government ts a party to litigation or has interest in such litigation, and by careful review, the agency determines that the records are bolh relevant and necessary to the litigation and the use of such records is therefore deemed by the agency to be for a purpose that ls compatible with the purpose for which the agency collected the records. 3. Except as noted in Question 14, when a record on its face, or in conjunction with other records, indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute, padicular program statute, regulation, rule, or order issued pursuant thereto, the relevant records may be disclosed to the appropriate Federal, foreign, State, local, tdbal, or other public authority responsible for enforcing, investigating or prosecuting such violation or charged with enforcing or implementing the statute, rule, regulation, or order. 4. To any source or potential source from which information is requested in the course of an investigation concerning the hiring or retention of an employee or other personnel action, or the issuing or retention of a security clearance, contract, grant, license, or other benefit, to the extent necessary to identify the individual, inform the source of the nature and purpose of the investigation, and to Identify the type of information requested. 5. To a Federal, State, local, foreign, tribal, or other public authority the fact that this system of records contains information relevant to the retention of an employee, or the retention of a security clearance, contract, license, grant, or other benefit. The other agency or licensing organization may then make a request supported by written.consent of the individual for the entire record if it so chooses, No disclosure will be made unless the information has been determined to be sufficiently reliable to support a referral to another office within the agency or to another Federal agency for criminal, civil, administrative, personnel, or regulatory action. 6. To contractors, grantees, expeds, consultants, or volunteers when necessary to perform a function or service related to this record for which they have been engaged. Such recipients shall be required to comply with the Privacy Act of 1974, as amended. 7. To the news media or the general public, factual information the disclosure of which would be in the public interest and which would not constitute an unwarranted invasion of personal privacy. 8. To a Federal, State, or local agency, or other appropriate entitles or individuals, or through established liaison channels to selected foreign governments, in order to enable an intelligence agency to carry out its responsibilities under the National Security Act of 1947 as amended, the C IA Act of 1949 as amended, Executive Order or any successor order, applicable national security directives, or classified implementing procedures approved by the Attorney General and promulgated pursuant to such statutes, orders or directives. 9. To a Member of Congress or to a Congressional staff member in response to an inquiry of the Congressional office made at the written request of the constituent about whom the record Is maintained. 10. To the National Archives and Records Administration for records management inspections conducted under 44 USC 2904 and To the Office of Management and Budget when necessary to the review of private relief legislation. Alabama AL Hawaii HI Massachusetts MA New Mexico NM South Dakota SD Alaska AK Idaho ID Michigan MI New York NY Tennessee TN Arizona AZ Illinois IL Minnesota MN North Carolina NC Texas TX Arkansas AR Indiana IN Mississippi MS North Dakota ND Utah UT California CA Iowa IA Missouri MO Ohio OH Vermont VT Colorado CO Kansas KS Montana MT Oklahoma OK Virginia VA Connecticut CT Kentucky KY Nebraska NE Oregon OR Washington WA Delaware DE Louisiana LA Nevada NV Pennsylvania PA West Virginia WV Florida FL Maine ME New Hampshire NH Rhode Island RI Wisconsin WI Georgia GA Maryland MD New Jersey NJ South Carolina SC Wyoming WY American Samoa AS District of Columbia DC Guam GU Northern Marianas CM Puerto Rico PR Trust Territory "l-f Virgin Islands VI Public reporting burden for this collection of information is estimated to average 30 minutes per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to Reports and Forms Management Officer, UoS. Office of Personnel Management, 1900 E Street, N.W., Room CHP-500, Washington, D.C Do not send your completed form to this address. A26

55 Standard Form 85 (EG) Revised September 1995 U.S. Office of, Personnel Management 5 CFR Parts 731 and 736 QUESTIONNAIRE FOR NON-SENSITIVE POSITIONS Form approved: OMB No NSN OPM Codes USE ONLY " Case Number A Type of B Extra C Nature of Investigation Coverage Act on Code D Date of Action E Geographic F Position G H Location Title SON Month Day t Year OPAC-ALC J Accounting Data and/or Number Agency Case Number KRequesting. Name and Title Signature Telephone Number Date Official O FULL If you have only initials in your name, use them and state (IO). NAME = If you have no middle name, enter "NMN". Last Name I First Name I OPLAOE OF BIRTH - Use the two letter code for the State. City, County I OOTHER G ve other NAMES names USED you used and the period of time you used them (for example." your maiden name, name(a) by a former mar~age, former name(s), alias(es), or nickname(s)), If the other name is your maiden name, put "nee" in front of it, Name Month/year Month]Year Name Month/year Month/year #1 J To #3 To Name #2 OSEX (Ma~onebox) OClTIZENSHIP Mark the box at the right that reflects your current citizenship status, and follow its instructions. State Female[---"~ Male If you are a "Jr.," "Sr.," "11," etc., enter this in the O DATE OF box after your middle name. BIRTH Middle Name. Jr.,ll, etc. ~Month Day Year I SOCIAL SECURITY icountry (ifnotin the UnitedStates) Month/Year Month/Year Name ~ Month/Year Mon To #4 J To I am a U.S. citizen or national by birth in the U.S. or U.S. territory/possession. (Answer items b and d) I am a U.S. citizen, but I was NOT born in the U.S. (Answeritemsb, candd) I am not a U.S. citizen. (Answer items b ande) Your Mother s Malden Name UNITED STATES CITIZENSHIP If you are a U.S. citizen, but were not born in the U.S, provide information about one or more of the following proofs of your citizenship. Naturalization Certificate (Where were you naturalized?) Court City State Certificate Number Month/Day/Year Issued Citizenship Certificate (Where was the certificate issued?) City State Certificate Number Month/Day/Year Issued State Department Form Report of Birth Abroad of a Citizen of the United States Give the date the form was Month/Day/Year Explanation prepared and give an explanation if needed I U.S. Passport This may be either a current or previous U.S. Passport. (~ DUAL CITIZENSHIP If you are (or were) a dual citizen of the United States and theanother right, country, provide the name of that country in the space to Passport Number~ Country MonthiDay/Yearlssued ~ ALIEN If you are an alien, provide the following information: State Date You Entered U.S. Place You I City Month Day Year Entered the United States:. I Exception to SF85, SF85P, SF85P-S, SF86, and SF86A approved by GSA September, ~2~7 Designed using Perform Pro, WHS/DIOR, Sep 95 Alien Registration Number Country(ies) of Citizenship Page1

56 OWHERE YOU HAVE LIVED List the places where you have lived, beginning with the most recent (#1) and working back 5 years. All periods must be accounted for in your list. Be sure to indicate the actual physical location of your residence: do not use a post office box as an address, do not lista permanent address when you were actually living at a school address, etc. Be sure to specify your location as closely as possible: for example, do not list only your base or ship, list your barracks number or home port. You may omit temporary military duty locations under 90 days (list your permanent address instead), and you should use your APO/FPO address if you lived overseas. For any address in the last 3 years, list a person who knew you at that address, and who preferably still lives in that area (do not list people for residences completely outside this 3-year period, and do not list your spouse, former spouses, or other relatives). Month/Year Month/Year Street Address Apt. # City (Country) State ZIP Code #1 To Present Name of Person Who Knows You Street Address Apt. # City (Country) State ZIP Code Month/Year Month/Year Street Address Apt. # City (Country) State ZIP Code #2 To Name of Person Who Knew You Street Address Apt. # City (Country) State ZIP Code Month/Year Month/Year Street Address Apt. # City (Country) State ZIP Code #3 To Name of Pe~ son Who Knew You Street Address Apt. # City (Country) State ZIP Code Month/Year Month/Year Street Address Apt. # City (Country) State ZIP Code #4 To Name of Person Who Knew You Street Address Apt. # City (Country) State ZIP Code Month/Year Month/Year Street Address Apt. # City (Country) State ZIP Code #5 To Name of Person Who Knew You Street Address Apt. # City (Country) State ZIP Code OWHERE YOU WENT TO SCHOOL List the schools you have attended, beyond Junior High School, beginning with the most recent (#1) and working back 5 years. List all College or University degrees and the dates they were received. If all of your education occurred more than 5 years ago, list your Fnost recent education beyond high school, no matter when that education occurred. - Use one of the following codes in the "Code" block: 1 - High School 2 - CollegaiUniversity/Military College 3 - Vocational/Technical/Trade School - For correspondence schools and extension classes, provide the address where the records are maintained. Month/Year Month/Year Code Name of School #1 To Street Address and City (Country) of School Degree/Diploma/Other State Month/Year Awarded ZIP Code Month/year Month/Year Code Name of School #2 To Street Address and City (Country) o! School Degree/Diploma/Other State Month/Year Awarded ZIP Code Month/Year Month/Year Code Name of School #3 To Street Address and City (Country) of School Enter your Social Security Number before going to the next page Degree/Diploma/Other Month/Year Awarded State ZIP Code 1 Page 2

57 O YOUR EMPLOYMENT ACTIVITIES List your employment activities, beginning wilh the present (#1) and working back 5 years. You should list all full-time work, part-time work, military service, temporary military duty locations over 90 days, self-employment, other paid world, and all periods of unemployment. The entire 5-year period must be accounted for without breaks,. but you need not list employments before your 16th birthday. Code. Use one of the codes listed below to identify the type of employment: 1 - Active military duty stations 5 - State Government (Non-Federal 2 - National Guard/Reserve employment) 3 - U,S.P.H.S. Commissioned Corps 6 - Self-employment (Include business name 4 - Other Federal employment and/or name of person who can verify) 7 - Unemployment (Include name of person who can verify) 8 - Federal Contractor (List Coqtractor, not Federal agency) 9 - Other Employer/V~rlfler Name. List the business name of your employer or the name of the person who can verify your Self-employment or unemployment in this block. If military service is being listed, include your duty location or home port here as welt as your branch of service. You should provide separate listings to reflect changes in your military duty locations or home ports. Previous Periods of Activity. Complete these lines If you worked for an employer on more than one occasion at the same location. After entering the most recent period of employment in the initial numbered block, provide previous periods of employment at the same location on the additional lines provided. For example, if you worked at XY Plumbing in Denver, CO, during 3 separate periods of time, you Would enter dates and information concerning the most recent period of employment first, and provide dates, position titles, and supervisors for the two previous periods of employment on the lines below that information. Month/Year Month/Year Code Employer/Verifier Name/Military Duty Location #1 To Present Employer s/verifier s Street Address City (Country) Street Address of Job Location (if different than Employer s Address) Supervisor s Name & Street Address (if different than Job Location) PREVIOUS PERIODS OF ACTIVITY (Block #1) Month/Year Month/Year To Month/Year Month/Year Month/Year To To Month/Year Month/Year #2 To Employer s/verifier s Street Address Month/Year I Code I Street Address of Job Location (if different than Employer s Address) Supervisor s Name & Street Address (if different than Job Location) Month/Year Month/Year PREVIOUS To PERIODS Month/Year Month/Year OF ACTIVITY To (Block #2) Month/Year Month/Year To Month/Year Month/Year Code #3 To Employer s/verifier s Street Address Position Title Position Title Position Title City (Country) City (Country) Employer/Verifier Name/Military Duty Location Position Title Position Title Street Address of Job Location (if different than Employer s Address) Supervisor s Name & Street Address (if different than Job Location) PREVIOUS PERIODS OF ACTIVITY (Block #3) Position Title Month/YearTo Month/Year Position Title Month/YearTo Month/Year Position Title Month/YearTo Month/Year Post on Title City (Countty) City (Country) i City (Country) Employer/Verifier Name/Military Duty Location City (Country) City (Country) City (Country) Supervisor Your Position Title/Military Rank State State Supervisor i State Supervisor Supervisor Supervisor Supervisor Supervisor Supervisor Supervisor ZIP Code ZIP Code ZIP Code Your Position Title/Military Rank State State State ZIP Code ZIP Code ZIP Code Your Position Title/Military Rank State State State ZIP Code ZIP Code Z P Code ITelephone Number ( ) Telephone Number ( ) Telephone Number ( ) ITelephone Number (Telepho)ne Number (Telephe)ne Number ( ) Telephone Number ( ) Telephone Number ( ) Telephone Number ( ) Enter your Social Security Number before going to the next page A29 Page 3

58 YOUR EMPLOYMENT ACTIVITIES (CONTINUED) Month/Year Month/Year Code I Employer/Verifier Name/Military Duty Location #4 To I Emp!oyer s/verifier s Street Address City (Country) Street Address of Job Location (if different than Employer s Address) Supervisor s Name & Street Address (if differebt than Job Location) op Month/Year Month/Year PREVIOUSt To PERIODS Month/Year Month/year ACTIVITY To (Block#4) I Month/Year Month/Year 1 To Month/Year Month/Year Code #5 To Employer snerifier s Street Address Position Title Position Title Position Title Street Address of Job Location (if different tha n Employer s Address) City (Country) Cty (Country) Employer/Verifier Name/Military Duty Location City (Country) City (Country) Supervisor Supervisor Supervisor Your Position Title/Military Rank State State State ZIP Code ZIP Code ZIP Code Your Position Title/Military Rank State State ZIP Code ZIP Code ITelephone Number ( ) Telephone Number (. ) Telephone Number ( ) ITelephone Number (Telepho)ne Number Supervisor s Name & Street Address (if different than Job Location) PREVIOUS PERIODS OF ACTIVITY (Block #5) Month/Year To Month/Year To Month/year Month/year Month/Year To Month/Year Month/year Month/year #6 To Code Employer s/verifier s Street Address Position Title Position Title Position Title Street Address of Job Location (if different than Employer s Address) Supervisor s Name & Street Address (if different than Job Location) PREVIOUS PERIODS OF ACTIVITY (Block #6) Month/Year Month/year I Position Title To Month/year Month/Year Position Title To Month/Year To Month/Year Position Title City (Country) Employer/Verifier Name/Military Duty Location City (Country) City (Country) City (Country) Supervisor Supervisor Supervisor Supervisor Supervisor Supervisor State ZIP Code (Telepho)ne Number ( ) Your Position Title/Military Rank State State State ZIP Code ZIP Code Z P Code Telephone Number ( ) Telephone Number ( ) Telephone Number ( ) O PEOPLE WHO KNOW YOU WELL List three people who know you well and live in the United States. They should be good friends, peers, colleagues, college roommates, etc., whose combined association with you covers as well as possible the last 5 years. Do not list your spouse, former spouses, or other relatives, and try not to list anyone who is listed elsewhere on this form. Name Dates Known L.T.P,J.e, phone Number Month/Year Month/Ye.ar #1 I~ JDay To I II Night Home or Work Address City (Country) State t ZIP Code Name Dates Known ~.T.eJ.e~hone Number Month/Year Month/Year #2 L_.~ Day. To r-~l Night ~ ) Home or Work Address City (Country) I State ZIP Code Name I Dates Known ~.Le~hone Number Month/Year Month/Year #3 L===J Day I To [ ~ Night ~, ) Home or Work Address Enter your Social Security Number before going to the next page i city (country) I state I ZIP Code Page 4

59 Enter your Social Security Number before going to the next page 1 Page 5 O YOUR SELECTIVE SERVICE RECORD Yes No Are you a male born after December 31, 1959? If "No," go to 13. If "Yes," go to b. Have you registered with the Selective Service System? If "Yes," provide your registration number. If "No," show the reason for your legal exemption below. Registration Number Legal Exemption Explanation O YOUR MILITARY HISTORY Yas No Have you served in the United States military? Have you served in the United States Merchant Marine? List all of your military service below, including service in Reserve, National Guard, and U.S. Merchant Marine. Start with the most recent period of service (#1) and work backward. If you had a break in service, each separate pedod should be listed. Code. Use one of the codes listed below to identify your branch of service: 1 - Air Force 2 - Army 3 - Navy 4 - Marine Corps 5 - Coast Guard 6 - Merchant Marine 7 - National Guard O/E. Mark "O" block for Officer or "E" block for Enlisted. Status. "X" the appropriate block for the status of your service during the time that you served. If your service was in the National Guard, do not use an "X"; use the two-letter code for the state to mark the block. Country. If your service was with other than the U.S. Armed Forces, Identify the country for which ~,ou served. Month/Year Month/Year Code Service/Certificate # o E Status Country National Active Active Inactive Guard Reserve To To O ILLEGAL DRUGS Yes No In the last year, have you used, possessed, supplied, or manufactured illegal drugs? When used without a prescription, illegal drugs include marijuana, cocaine, hashish, narcotics (opium, morphine, codeine, heroin, etc.), stimulants (cocaine, amphetamines, etc.), depressants (barbiturates, methaqualone, tranquilizers, etc.), hallucinogenics (LSD, PCP, etc.). (NOTE: Neither your t~uthful response nor information derived from your response will be used as evidence against you in any subsequent criminal proceeding.) If you answered "Yes," provide information relating to the types of substance(s), the nature of the actlvity, and any other details relating to your involvement with illegal drugs. Include any treatment or counseling received. Month/Year Month/year Type of Substance Explanation To To To Use the continuation sheet(s) (SF86A) for additional answers to items 8, 9, and 10. Use the space below to continue answers to all other items and any information you would like to add. If more space is needed than is provided below, use a blank sheet(s) of paper. Start each sheet with yo~jr name and Social Security number. Before each answer, identify the number of the item. I I Affer completing this form you should review your answers to all questions to make sure the form is complete and accurate, and then sign and date the following certification and sign and date the release on Page 6. Certification That My Answers Are True My statements on this form, and any attachments to it, are true, complete, and correct to the best of my knowledge and belief and are made in good faith. I understand that a knowing and willful false statement on this form can be punished by fine or imprisonment or both. (See section 100i of title 18, United States Code). Signature (Sign in ink) Date

60 Standard Form 85 Revised September 1995 U.S. Office of Personnel Management 5 CFR Parts 7 31 and 736 Form approved: OMB No NSN UNITED STATES OF AMERICA AUTHORIZATION FOR RELEASE OF INFORMATION Carefully read this authorization to release information about you, then sign and date it in black ink. I Authorize any investigator, special agent, or other duly accredited representative of the authorized Federal agency conducting my background investigation, to obtain any information relating to my activities from schools, residential management agents, employers, criminal justice agencies, retail business establishments, or other sources of information. This information may include, but is not limited to, my academic, residential, achievement, performance, attendance, disciplinary, employment history, and criminal history record information. I Understand that, for some sources of information, a separate..specific release will be needed, and I may be contacted for such a release at a later date. I Authorize custodians of records and sources of information pertaining to me to release such information upon request of the investigator, special agent, or other duly accredited representative of any Federal agency authorized above regardless of any previous agreement to the contrary. I Understand that the information released by records custodians and sources of information is for official use by the Federal Government only for the purposes provided in this Standard Form 85, and may be redisclosed by the Government only as authorized by law. Copies of this authorization that show my signature are as valid as the original release signed by me. This authorization is valid for two (2) years from the date signed. Signature (Sign in ink) Full Name (Type or Print Legibly) Date Signed Other Names Used Social Security Number Current Address (Street, City) State IZIP Code Home Telephone Number (Include Area Code) A32 Page

61 m BIB F R O M INV FORM 42 (Rev, 6/05) U.S. OFFICE OF PERSONNEL MANAGEMENT (5 CFR 736) UNITED STATES OFFICE OF PERSONNEL MANAGEMENT FEDERAL INVESTIGATIONS PROCESSING CENTER PO BOX.618 BOYERS, PA INVESTIGATIVE REQUEST O PERSONAL INFORMATION U,S. GOVERNMENT USE ONLY REDAOIED DUE TO AUTO;~ATIOh --FROCESSING, GUFLICATE INQUIRIES NAY BE RI ICEIVED. T O SUSAN FOSTER 4800 OAK GROVE DR. PASADENA, CA INSTRUCTIONS: Your name has been provided by the per~onidentltic--d below to assist in completing a background investigationto help us determine this person s suitability for employment or security clearance. To help us make th is determipation, we ask thai you complete all Items on the back of this form and return the form In the enclosed envelope, You were listed A REFERENCE PRIVACY ACT INFORMATION: This investigathte inquiry Is in full compliance with the Privacy Act of 1974 and other laws prote~ng the civil rights of the person we ere investigating. The Information you provide, including your identity, will be disclosed to the person being investigated and other federal agencies, at this person s request CERTIFICATION~ The person we are investigating has given written consent for this Investigative inquiry, We keep that ~onsent on tile. If a copy is required in order to complete this form, or you would like to keep your Identity confidential, please indicate tliis requirement tn writing O n the reverse. Completion of this investigation as soon as possible will help this person and the agency perform their duties in a more timely and efficient manner, CASE NUMBER: 07K37587 CASE TYPE: 02 ITEM NUMBER: 00 7 DOCUMENTATION SERVICES YEARS :KNOWN: 00 ~URRENT ADDRESS: A33

62 CORRECT MARK: USE A NO. 2 PENCIL OR BLUE OR BLACK INK PEN ONLY. INCORRECT MARKS: DO NOT USE PENS WITH INK THAT SOAKS THROUGH THE PAPER. DO NOT MAKE ANY STRAY ~KS ON THIS SHEET. ~-~- ~,"~" ~, --" PLEASE COMPLETE THE ITEMS SHOWN BELOW 1~ HOW LONG HAVE YOU KNOWN THIS PERSON? a. ~ - YEARS ~ MONTHS b (~) I DON T KNOW THIS PERSON (DON TCO~L~n~O ~H~ ~ MY ASSOCIATION WITH THIS PERSON IS/WAS AS A: a._-", COWORKER c ~ ~., FRIEND e ~, FORMER SPOUSE g O RF_.LATIV~ b.;~ NEIGHBOR d.".._~ SPOUSE f ~ ~) INSTRUCTOR h ~,_.~ OTHER (F LF..~ EXPL, UN IN ITEM 8) ~. ON THE AVERAGE, 1 ASSOCIATE(D) WITH THIS PERSON: a "~ ; DAILY ~ ~ _ ~ MONTHLY e ~ ONCE EVERY YEAR OR 2 b. - : WEEKLY d,~; TWICE AYEAR f O ONCE IN 3 OR MORE YEARS _.J I LAST ASSOCIATED WiTH THIS PERSON: a - ~, 0 T O 3 ~ONTHS AGO c -%~ 1 TO 3 YEARS AGO e (~ MORE THAN 5 YEARS AGO b -;~ 3 TO 12 : MONTHS AGO d ~ 3TO 5 YEARS AGO J DOES THE IN~:ORMATION ON THE FRONT OF THIS FORM CONCERNING THIS PERSON APPEAR TO BE CORRECT? a..,.~_, YES! b :.L~, NO--IT.APPEARSTO BE INCORRECT OR 6~ DO YOU HAVE ANY REASON TO QUESTION THIS PERSON S HONESTY OR TRUSTWORTHINESS? a ~L. NO c (~) I DO NOT KNOWTHIS PERSON WELL ENOUGH TO RESPOND b, :-~. YES (PILEASE EXPLAIN IN ITEM 8),d (~ I WISH TO DISCUSS THEADVERSE INFORMATION I H~VE 7~ DO YOU HAVE ANY ADVERSE INFORMATION ABOUT THIS PERSON S EMPLOYMENT, RESIDENCE OR ACTIVITIES GONCERNING: YES NO ~ NO YES NO a ~3~_-j VIOLATIONS OFTHELAW " c,~=,~,~ ABUSE OFALCOHOLAND/OR DRUGS e F~,~ GENERAL BEHAVIOR OR CONDUCT b :..~ FINANCIAL INTEGRITY d :._-"~ MENTALOR EMOTIONAL STABILITY f ~ ~(~ OTHER MATTERS (IF YES, PLEASE EXPLAIN IN ITEM,,-,..J I WISH TO DISCUSS THE ADVERSE INFORMATION I HAVE, ~:~ IF ADDITIONAL INFORMATION IS PROVIDED BELOW, YOU MUST RLL IN THIS MARK. ADDITIONAL INFORMATION WHICH YOU FEEL MAY HAVE A BEARING ON THIS PERSON S SUITABILITY FOR GOVERNMENT EMPLOYMENT OR A SECURITY CLEARANCE. THIS SPACE MAY BE USED FOR DEROGATORY AS WELL AS POSITIVE INFORMATION. ~ERSON FOR GOVERNMENT SECURITY CLEARANCE OR EMPLOYMENT? c ~ I DON T KNOW THIS PERSON WELL ENOUGH TO MAKE A RECOMMENDATION