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; No. 07-56424

AMANDA MAINZER; SCOTT D.C. No.

MAXWELL; TIMOTHY P. MCELRATH;  CV-07-05669-ODW

SUSAN PARADISE; KONSTANTIN

PENANEN; CELESTE M. SATTER; ORDER AND

PETER M. B. SHAMES; AMY SNYDER OPINION

HALE; WILLIAM JOHN WALKER;

PAUL R. WEISSMAN,

Plaintiffs-Appellants,

v.

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; 

7137
CARLOS M. GUTIERREZ, Secretary 

of Commerce, in his official

capacity 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, 2007—Pasadena, California

Filed June 20, 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. 

7138 NELSON v. NASA
COUNSEL

Dan Stormer and Virginia Keeny, Law 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.

ORDER

Our prior opinion filed on January 11, 2008, and reported

at 512 F.3d 1134 is vacated concurrent with the filing of a

new opinion today. 

The petition for panel rehearing and the petition for rehearing en banc are denied as moot. The parties may file new petitions for rehearing and rehearing en banc in accordance with

the Federal Rules of Appellate Procedure. 

IT IS SO ORDERED. 

OPINION

WARDLAW, Circuit Judge:

The named appellants in this action (“Appellants”) are scientists, engineers, and administrative support personnel at the

Jet Propulsion Laboratory (“JPL”), a research laboratory run

jointly by the National Aeronautics and Space Administration

(“NASA”) and the California Institute of Technology

(“Caltech”). Appellants sued NASA, Caltech, and the Depart7142 NELSON v. NASA
ment 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.

I

JPL is located on federally owned land, but operated

entirely by Caltech pursuant to a contract with NASA. Like

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, possession, supply, or manufacture

within the past year, along with the nature and circumstances

of any such activities and any treatment or counseling

received. This information is then checked against four government databases: (1) Security/Suitability Investigations

Index; (2) the Defense Clearance and Investigation Index;

NELSON v. NASA 7143
(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 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.2

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. 

2Appellants 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]attern of irresponsibility as reflected in . . . credit history,” “carnal knowledge,” “sodomy,” “incest,” “abusive language,” “unlawful assembly,” “attitude,”

7144 NELSON v. NASA
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

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

“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. 

NELSON v. NASA 7145
statutory authority in imposing the investigations on contract

employees; (2) the investigations constitute unreasonable

searches prohibited by the Fourth Amendment; and (3) the

investigations violate their constitutional right to informational privacy. 

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

Appellants’ APA claim, finding statutory support for the

investigations in the National Aeronautics and Space Act of

1958 (the “Space Act”), 42 U.S.C. § 2455(a). The court

rejected Appellants’ Fourth Amendment argument, holding

that a background investigation was not a “search” within the

meaning of the Fourth Amendment. Finally, the court found

that the SF 85 questionnaire implicated the constitutional right

to informational privacy but was narrowly tailored to further

the government’s legitimate security interest. 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 to

JPL’s facilities 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

7146 NELSON v. NASA
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

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 their informational privacy claim, 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

NELSON v. NASA 7147
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

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, 779-80 (9th Cir. 2000) (quoting

Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (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. 

7148 NELSON v. NASA
[3] However, the district court overlooked Appellants’

challenges to the government investigation that will result

from the SF 85 requirement that the applicant sign 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.” (emphasis added). 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 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 bearing on 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 Claim

[5] Appellants first claim that Federal Appellees violated

the APA by imposing background investigations on contract

employees without any basis in executive order or statute. The

district court found that Congress gave NASA the authority to

NELSON v. NASA 7149
conduct such investigations in the Space Act of 1958, which

provides: 

The [NASA] Administrator shall establish such

security requirements, restrictions, and safeguards as

he deems necessary in the interest of the national

security. The 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. § 2455(a). 

Appellants argue that the “security or other personnel

investigations” described in the second sentence of § 2455(a)

are examples of the “security requirements, restrictions, and

safeguards” described in the first sentence and therefore may

only be established “as . . . deem[ed] necessary in the interest

of the national security.” They then argue that this limiting

clause must be read in light of Cole v. Young, 351 U.S. 536

(1956), where the Supreme Court interpreted a statute giving

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). In Cole, 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” and therefore held 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. Appellants

claim that, by using identical limiting language in the Space

Act so soon after Cole, Congress intended to authorize personnel investigations only of contractors in “sensitive” positions and not of the “low risk” contractors at issue in this case.

7150 NELSON v. NASA
[6] We need not resolve whether the reference to the “interest of the national security” in § 2455(a) should be interpreted

in light of Cole, because we read this limiting language to

apply only to the “security requirements, restrictions, and

safeguards” described in the first sentence and not to the “personnel investigations” described in the second sentence. The

second sentence could plausibly be read as an example of the

“security requirements, restrictions, and safeguards”

described in the first sentence, but the statute’s legislative history strongly suggests that it was instead meant to be a separate and distinct authorization of power. The Conference

Report describes the two sentences separately and notes that

the Senate version of the bill contained the second sentence

but not the first. Conf. Rep. No. 2166 (1958), as reprinted in

1958 U.S.C.C.A.N. 3160, 3190, 3197-98. This suggests that

§ 2455(a) provides two distinct authorizations, the latter of

which allows the NASA Administrator to arrange for “security and other personnel investigations” of contractors “as he

deems appropriate,” regardless of whether these investigations are “necessary in the interest of the national security.”

Because the Space Act appears to grant NASA the statutory

authority to require the investigations here at issue, we agree

with the district court that Appellants are unlikely to succeed

on the merits of their APA claim.3

3To the extent that NASA has authority to require drug tests for current

contractors, that authority is spelled out in the Civil Space Employee Testing Act, codified at 42 U.S.C. § 2473c. Congress enacted the Testing Act

as part of the National Aeronautics & Space Administration Authorization

Act, Fiscal Year 1992, and not as part of the Space Act of 1958. With the

Testing Act, Congress gave NASA the power to administer a drug testing

program for those employees or contractors responsible for “safetysensitive, security, or national security functions.” Id. § 2473c(c)(1)-(2).

The “program shall provide for preemployment, reasonable suspicion, random, and post-accident testing for use . . . of alcohol or a controlled substance.” Id. Moreover, the statute provides that any drug test “shall . . .

provide for the confidentiality of test results and medical information of

employees.” Id. § 2473c(f)(7). 

NELSON v. NASA 7151
C. Fourth Amendment Claim

We also agree with the district court’s conclusion that

Appellants are unlikely to succeed on their Fourth Amendment claims, because the government’s actions are not likely

to be deemed “searches” within the meaning of the Amendment. An action to uncover information is generally considered a “search” if the target of the search has a “reasonable

expectation of privacy” in the information being sought, a

term of art meaning a “subjective 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)). One does not have a “reasonable

expectation of privacy” in one’s information for Fourth

Amendment purposes merely because that information is of a

“private” nature; instead, Fourth Amendment protection can

evaporate in any of several 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 in part because

the information was voluntarily disclosed to the bank). To

succeed on their Fourth Amendment claim, therefore, Appellants must demonstrate that either the Form 42 inquiries sent

to third parties or the SF 85 questionnaire itself violates a

“reasonable expectation of privacy” so as to be considered a

“search” within the meaning of the Amendment. 

1. Form 42 Inquiries

[7] “What a person knowingly exposes to the public . . . is

not a subject of Fourth Amendment protection,” Katz v.

United States, 389 U.S. 347, 351 (1967); however, information does not lose Fourth Amendment protection simply

because it is conveyed to another party. For example, in Katz,

FBI agents attached an electronic listening device to the outside of a public telephone booth and recorded the defendant

transmitting illegal betting information over the telephone. Id.

at 348. Even though the booth’s occupant had voluntarily con7152 NELSON v. NASA
veyed the information in the conversation to the party on the

other end of the line, the Court found that he was “surely entitled to assume that the words he utters into the mouthpiece

w[ould] not be broadcast to the world,” so the covert surveillance was considered a search within the meaning of the

Amendment. Id. at 352-53. 

On the other hand, in United States v. White, the Supreme

Court held that the electronic surveillance of a conversation

between a defendant and a government informant did not constitute a “search” for Fourth Amendment purposes. 401 U.S.

745, 754 (1971) (plurality). The Court acknowledged that, as

in Katz, the speaker likely expected the content of the conversations to be kept private; however, it held as a bright-line

rule 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.’ ” Id. at

749 (quoting Hoffa v. United States, 385 U.S. 293, 302

(1966)). In United States v. Miller, 425 U.S. 435 (1976), holding that the government could subpoena private bank records

without implicating the Fourth Amendment, the Court

extended the bright-line rule to all information knowingly

revealed to the government by third parties:

[T]he Fourth Amendment does not prohibit the

obtaining of information revealed to a third party and

conveyed by him to Government authorities, even if

the information is revealed on the assumption that it

will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.

Id. at 443. 

[8] In the challenged background investigations, the government will send written Form 42 inquiries to the applicant’s

acquaintances. Through these inquiries, the third parties may

disclose highly personal information about the applicant. As

in White and Miller, the applicant presumably revealed this

NELSON v. NASA 7153
information to the third party with the understandable expectation that this information would be kept confidential. Nonetheless, these written inquiries appear to fit squarely under

Miller’s bright-line rule and therefore cannot be considered

“searches” under the Fourth Amendment.4

2. SF 85 Questionnaire

[9] The SF 85 questionnaire required of the applicant is

also unlikely to be considered a Fourth Amendment “search.”

Requiring an individual to answer questions may lead to the

forced disclosure of information that he or she reasonably

expects to keep private. Historically, however, 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) (holding that a psychological examination required for continued government employment was

not a search under the Fourth Amendment). 

As Judge Posner notes in Greenawalt, direct questioning

can potentially lead to a far greater invasion of privacy than

many of the physical examinations that have in the past been

considered Fourth Amendment “searches.” Id. at 589-90.

Nonetheless, applying the Fourth Amendment to such 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

4This analysis presupposes that the applicant voluntarily revealed the

information to the third party. For example, the Fourth Amendment could

still apply if the government actively used third parties to uncover private

information. See United States. v. Walther, 652 F.2d 788, 791 (9th Cir.

1981) (noting that the Fourth Amendment is implicated when “a private

party acts as an ‘instrument or agent’ of the state in effecting a search or

seizure.”). 

7154 NELSON v. NASA
mind. Id. at 590-91. 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 below.

See id. at 591-92. 

[10] Because neither the written inquiries directed at third

parties nor the SF 85 questionnaire directed at the applicants

will likely be deemed “searches,” Appellants are unlikely to

succeed on their Fourth Amendment claims. 

D. Informational Privacy Claim

Although the district court correctly found that Appellants

were unlikely to succeed on their APA and Fourth Amendment claims, it significantly underestimated the likelihood

that Appellants would succeed on their informational privacy

claim. These constitutional errors stem in large part from the

court’s erroneous ripeness ruling; by limiting its analysis to

the SF 85 questionnaire, the court failed to consider the most

problematic aspect of the government’s investigation—the

open-ended Form 42 inquiries. 

[11] 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 questioning police

applicant about her prior sexual activity violated her right to

informational privacy), medical information, NormanBloodsaw 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

NELSON v. NASA 7155
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). We must “balance the government’s interest in having or using the information against the individual’s interest

in denying access,” Doe v. Att’y Gen., 941 F.2d 780, 796 (9th

Cir. 1991), weighing, among other things:

“the type of [information] requested, . . . the potential for harm in any subsequent nonconsensual disclosure, . . . the adequacy of safeguards to prevent

unauthorized disclosure, the degree of need for

access, and whether there is an express statutory

mandate, articulated public policy, or other recognizable public interest militating towards access.” 

Id. (quoting United States v. Westinghouse Elec. Corp., 638

F.2d 570, 578 (3d Cir. 1980)) (alteration in original). 

Both the SF 85 questionnaire and the Form 42 written

inquiries require the disclosure of personal information and

each presents a ripe controversy. Therefore, whereas the district court limited its analysis to the SF 85 questionnaire, we

consider the constitutionality of both aspects of the investigation in turn. 

1. SF 85 Questionnaire

[12] Appellants concede that most of the questions on the

SF 85 form are unproblematic and do not implicate the constitutional right to informational privacy. They do however challenge the constitutionality of one group of questions

concerning illegal drugs. The questionnaire asks the applicant:

In the last year, have you used, possessed, supplied,

or manufactured illegal drugs? . . . . If you answered

7156 NELSON v. NASA
“Yes,” provide information relating to the types of

substance(s), the nature of the activity, and any other

details relating to your involvement with illegal

drugs. Include any treatment or counseling received.

The form indicates that “[n]either your truthful response nor

information derived from your response will be used as evidence against you in any subsequent criminal proceeding.”

The district court concluded that the requested information

implicated the right to informational privacy, but found that

there were “adequate safeguards in place [to deal with these]

sensitive questions.” 

Other courts have been skeptical that questions concerning

illegal drug use—much less possession, supply, or

manufacture—would even implicate the right to informational

privacy. For example, in Mangels v. Pena, 789 F.2d 836 (10th

Cir. 1986), the Tenth Circuit held that the disclosure of firefighters’ past illegal drug use did not violate their informational privacy rights. Id. at 839-40. The Court held that “[t]he

possession of contraband drugs does not implicate any aspect

of personal identity which, under prevailing precedent, is entitled to constitutional protection. . . . Validly enacted drug laws

put citizens on notice that this realm is not a private one.” Id.

at 839 (internal citations omitted). In National Treasury

Employees’ Union v. U.S. Department of Treasury, 25 F.3d

237 (5th Cir. 1994), the Fifth Circuit considered a similar

form to the SF 85 questionnaire, with almost identical questions concerning illegal drugs, and rejected the applicants’

informational privacy claims. The Court raised similar concerns to the Tenth Circuit:

Today’s society has made the bold and unequivocal

statement that illegal substance abuse will not be tolerated. The government declared an all-out war on

illegal drugs more than a decade ago. . . . Surely anyone who works for the government has a diminished

expectation that his drug and alcohol abuse history

NELSON v. NASA 7157
can be kept secret, given that he works for the very

government that has declared war on substance

abuse. 

Id. at 243. The Court also noted that the plaintiffs in that case

were all federal employees in either “High” or “Moderate”

risk “public trust” positions, and were thus acutely “aware of

[their] employer’s elevated expectations in [their] integrity

and performance.” Id. at 244. 

Like the Tenth and Fifth Circuits, we are sensitive to the

government’s interest in uncovering and addressing illegal

substance abuse among its employees and contractors, given

the public stance it has taken against such abuse. This government interest is undoubtedly relevant to the constitutional balancing inquiry: whether the forced disclosure “would advance

a legitimate state interest and [is] narrowly tailored to meet

the legitimate interest.” Crawford, 194 F.3d at 959. We are

less convinced, however, that the government’s interest

should inform the threshold question of whether requested

information is sufficiently personal to invoke the constitutional right to privacy. We doubt that the government can

strip personal information of constitutional protection simply

by criminalizing the underlying conduct—instead, to force

disclosure of personal information, the government must at

least demonstrate that the disclosure furthers a legitimate state

interest. Drug dependance and abuse carries an enormous

stigma in our society and “is not generally disclosed by individuals to the public.” Id. at 958. If we had to reach the issue,

therefore, we would be inclined to agree with the district court

that SF 85’s drug questions reach sensitive issues that implicate the constitutional right to informational privacy. 

[13] We do not need to decide this issue, however, because

even if the question requiring disclosure of prior drug use,

possession, supply, and manufacture does implicate the privacy right, it is narrowly tailored to achieve the government’s

legitimate interest. As our sister circuits have lucidly

7158 NELSON v. NASA
explained, the federal government has taken a strong stance

in its war on illegal drugs, and this stance would be significantly undermined if its own employees and contractors freely

ignored its laws. By requiring applicants to disclose whether

they have “used, possessed, supplied, or manufactured illegal

drugs” within the past year, and, if so, to explain the “nature

of the activity” and “any other details relating to [the applicant’s] involvement with illegal drugs,” the government has

crafted a narrow inquiry designed to limit the disclosure of

personal information to that which is necessary to further the

government’s legitimate interest. 

[14] The same cannot be said, however, for requiring applicants to disclose “any treatment or counseling received” for

their drug problems. Information relating to medical treatment

and psychological counseling fall squarely within the domain

protected by the constitutional right to informational privacy.

See Norman-Bloodsaw, 135 F.3d at 1269; Doe, 941 F.2d at

796. The government has not suggested any legitimate interest in requiring the disclosure of such information; indeed,

any treatment or counseling received for illegal drug use

would presumably lessen the government’s concerns regarding the underlying activity. Because SF 85 appears to compel

disclosure of personal medical information for which the government has failed to demonstrate a legitimate state interest,

Appellants are likely to succeed on this—albeit narrow—

portion of their informational privacy challenge to SF 85. 

2. Form 42 Inquiries

[15] The Form 42 written inquiries—omitted from the district court’s analysis as a result of its erroneous ripeness

holding—are much more problematic. Form 42 solicits “any

adverse information” concerning “financial integrity,” “abuse

of alcohol and/or drugs,” “mental or emotional stability,”

“general behavior or conduct,” and “other matters.” These

open-ended questions are designed to elicit a wide range of

adverse, private information that “is not generally disclosed

NELSON v. NASA 7159
by individuals to the public” and therefore seemingly implicate the right to informational privacy. Crawford, 194 F.3d at

958.5

The government suggests that even if the information disclosed in the investigation implicates the right to informational privacy, the scheme must be upheld because the

government has taken measures to keep the information from

being disclosed to the general public. Although the risk of

public disclosure is undoubtedly an important consideration in

our analysis, see Planned Parenthood of S. Ariz. v. Lawall,

307 F.3d 783, 790 (9th Cir. 2002), it is only one of many factors that we should consider, id. at 789-90 (“[T]he right to

5The constitutional right to informational privacy is concerned with “the

individual interest in avoiding disclosure of personal matters.” In determining whether the right applies, our cases have emphasized the nature of

the information sought—in particular, whether it is sufficiently “personal”

to merit protection, see Crawford, 194 F.3d at 958; Doe, 941 F.2d at 796

—rather than on the manner in which the information is sought. The

highly personal information that the government seeks to uncover through

the Form 42 inquiries is protected by the right to privacy, whether it is

obtained from third parties or from the applicant directly. 

In this respect, the right to informational privacy differs from the Fourth

Amendment, which, as a bright-line rule, “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 occasionally

been rephrased as a general holding “that a person has no legitimate

expectation of privacy in information he voluntarily turns over to third

parties.” Smith v. Maryland, 442 U.S. 735, 743-44 (1979). We think it is

clear, however, that the “legitimate expectation of privacy” described in

this context is a term of art used only to define a “search” under the Fourth

Amendment, and Miller and Smith do not preclude an informational privacy challenge to government questioning of third parties about highly personal matters. If the constitutional right to informational privacy were

limited to cases that involved a Fourth Amendment “search,” the two

rights would be entirely redundant. Indeed, although the two doctrines

often overlap, see Norman-Bloodsaw, 135 F.3d at 1269, we have repeatedly found the right to informational privacy implicated in contexts that

did not involve a Fourth Amendment “search,” see, e.g., Thorne, 726 F.2d

at 468. 

7160 NELSON v. NASA
‘informational privacy’ . . . applies both when an individual

chooses not to disclose highly sensitive information to the

government and when an individual seeks assurance that such

information will not be made public.”); Norman-Bloodsaw,

135 F.3d at 1269 (noting that a government action can violate

the right to privacy without disclosure to third parties); Doe,

941 F.2d at 796 (listing, as two factors among many, “ ‘the

potential for harm in any subsequent nonconsensual disclosure [and] the adequacy of safeguards to prevent authorized

disclosure.’ ” (quoting Westinghouse Elec. Corp., 638 F.2d at

578). Therefore, although safeguards exist to help prevent disclosure of the applicants’ highly sensitive information, Federal Appellees must still demonstrate that the background

investigations are justified by legitimate state interests and

that Form 42’s questions are “narrowly tailored to meet those

legitimate interests.” Thorne, 726 F.2d at 469. 

We agree with the government that it has several legitimate

reasons for investigating its contractors. NASA has an interest

in verifying its contractors’ identities to make sure that they

are who they say they are, and it has an interest in ensuring

the security of the JPL facility so as not to jeopardize the

costly investments housed therein. Appellants concede, as

they must, that these are legitimate government interests. 

The government has failed to demonstrate, however, that

Form 42’s questions are “narrowly tailored” to meet these

legitimate interests. Initially, we note that although NASA has

a general interest in keeping the JPL facility secure, there is

no specific evidence in the record to suggest that any of the

“low risk” JPL personnel pose such a security risk; indeed,

NASA appears to designate as “moderate risk” any individual

who has the “opportunity to cause damage to a significant

NASA asset or influence the design or implementation [of] a

security mechanism designed to protect a significant NASA

asset.” More importantly, Form 42’s broad, open-ended questions appear to range far beyond the scope of the legitimate

state interests that the government has proposed. Asking for

NELSON v. NASA 7161
“any adverse information about this person’s employment,

residence, or activities” may solicit some information relevant

to the applicant’s identity or security risk, but there are 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. It is difficult to see how the vague solicitation of

derogatory information concerning the applicant’s “general

behavior or conduct” and “other matters” could be narrowly

tailored to meet any legitimate need, much less the specific

interests that Federal Appellees have offered to justify the

new requirement. 

[16] 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 469-70. 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 as justification. Given that Form 42’s

open-ended and highly private questions are authorized by

7162 NELSON v. NASA
this broad, standardless waiver and do not appear narrowly

tailored to any legitimate government interest, the district

court erred in finding that Appellants were unlikely to succeed on their informational privacy claim. 

E. Balance of Hardships

[17] 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

“monetary injury is not normally considered irreparable,” L.A.

Mem’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. 

[18] 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

NELSON v. NASA 7163
injunction in this case would not affect NASA’s ability to

investigate JPL personnel in “high risk” or “moderate risk”

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

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). 

[19] 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

7164 NELSON v. NASA
joint participant in NASA’s investigation program, even

though it was not so initially. 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 claim and the balance 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. 

NELSON v. NASA 7165