JEFFREY S. BUCHOLTZ - HSPD12 JPLhspd12jpl.org/files/03-03-08-exh-reply-further_support... · 2008-03-04 · 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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JEFFREY S. BUCHOLTZActing Assistant Attorney GeneralTHOMAS P. O’BRIENUnited States AttorneySUSAN K. RUDYAssistant Branch DirectorVESPER MEI(District of Columbia Bar)WENDY M. ERTMERJAMES C. LUHTrial AttorneysUnited States Department of JusticeCivil DivisionFederal Programs BranchP.O. Box 883 – Rm 7316Washington, DC 20044Telephone: (202) 514-4686Facsimile: (202) [email protected]

Attorneys for Federal Defendants National Aeronautics and Space Administration; Michael Griffin, Director of NASA; Department of Commerce; Carlos M. Gutierrez, Secretary of Commerce

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

Robert M. Nelson, William )Bruce Banerdt, Julia Bell, ) Case No. CV-07-05669 ODW(VBKx)Josette Bellan, Dennis V. )Byrnes, George Carlisle, Kent ) FEDERAL DEFENDANTS’ Robert Crossin, Larry R. ) EXHIBIT IN SUPPORT OF D’Addario, Riley M. Duren, ) THEIR REPLY BRIEF Peter R. Eisenhardt, Susan ) IN FURTHER SUPPORT OF THEIRD.J. Foster, Matthew P. ) MOTION TO CLARIFYGolombek, Faroujan Gorjian, )Zareh Gorjian, Robert J. Haw, )James Kulleck, Sharon L. )Laubach, Christian A. )Lindensmith, Amanda Mainzer, )Scott Maxwell, Timothy P. ) DATE: March 10, 2008McElrath, Susan Paradise, ) TIME: 1:30 p.m.Konstantin Penanen, Celeste ) COURTROOM: 11M. Satter, Peter M.B. Shames, )Amy Snyder Hale, William John ) Honorable Otis D. Wright IIWalker and Paul R. Weissman, )

)Plaintiffs, )

)v. )

)

Case 2:07-cv-05669-ODW-VBK Document 94-2 Filed 03/03/2008 Page 1 of 66

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National Aeronautics and )Space Administration, an )Agency of the United States; )Michael Griffin, Director of )NASA, in his official )capacity only; Department of )Commerce; Carlos M. )Gutierrez, Secretary of )Commerce, in his official )capacity only; )and Does 1-100, )

)Defendants. )

)


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INDEX OF EXHIBITS

Ex. C Federal Appellees’ Petition for Rehearing or Rehearing En Banc, filed February 25, 2008

March 3, 2008 Respectfully submitted,

/s/ Vesper Mei Vesper MeiAttorney for Federal Defendants


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EXHIBIT C


No. 07-56424

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

ROBERT M. NELSON, et al.,

Plaintiffs-Appellants,

v.

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States;

MICHAEL GRIFFIN, DIRECTOR OF NASA, in his official capacity only; DEPARTMENT OF COMMERCE;

CARLOS M. GUTIERREZ, SECRETARY OF COMMERCE, in his official capacity only; CALIFORNIA INSTITUTE OF TECHNOLOGY;

and DOES 1-100,

Defendants-Appellees.

On Appeal from the United States District Court for the Central District of California

PETITION FOR PANEL REHEARING OR REHEARING EN BANC

JEFFREY S. BUCHOLTZ

Acting Assistant AttorneyGeneral

GEORGE S. CARDONAUnited States Attorney

MARK B. STERN

(202) 514-5089CHRISTOPHER J. WALKER(202) 616-5385 Attorneys, Appellate Staff

Civil Division, Room 7531 Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530-0001


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TABLE OF CONTENTSPage

INTRODUCTION AND SUMMARY. . . . . . . . . . . . . . . . . . . -1-

STATEMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . -3-

A. Statutory and Regulatory Background. . . . . . . . . -3-

B. Prior Proceedings. . . . . . . . . . . . . . . . . . -6-

REASONS WHY THE PETITION SHOULD BE GRANTED. . . . . . . . . . -7-

I. In Holding Basic Background Checks Unconstitutional, The Decision Departs From Precedent And Frustrates The Ability Of The Political Branches To Protect Government Facilities.. . . . . . . . . . . . . . . -7-

II. The Panel’s Statutory Ruling Places Wholly Unwarranted Limitations On The Government’s Ability To Undertake Basic Security Precautions To Protect Federal Facilities.. . . . -13-

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . -19-

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

STATEMENT OF RELATED CASES


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TABLE OF AUTHORITIES

Cases: Page

AFL-CIO v. Department Housing & Urban Devel.,118 F.3d 786 (D.C. Cir. 1997).. . . . . . . . . . . . . . . 9

California Department of Water Resources v. FERC,489 F.3d 1029 (9th Cir. 2007).. . . . . . . . . . . . . . . 14

Carlucci v. Doe,488 U.S. 93 (1988). . . . . . . . . . . . . . . . . . . . . 16

Cole v. Young,351 U.S. 536 (1956).. . . . . . . . . . . . . . . . 14, 15, 16

In re Crawford,194 F.3d 954 (9th Cir. 1999). . . . . . . . . . . . . 7, 9, 12

Kester v. Campbell,652 F.2d 13 (9th Cir. 1981).. . . . . . . . . . . . . . . . 18

Mangels v. Pena,789 F.2d 836 (10th Cir. 1986).. . . . . . . . . . . . . . . 12

National Treasury Employees Union v. U.S. Department Of Treasury,25 F.3d 237 (5th Cir. 1994).. . . . . . . . . . . . . . 9, 11

Norman-Bloodsaw v. Lawrence Berkeley Laboratory,135 F.3d 1260 (9th Cir. 1998).. . . . . . . . . . . . . . . 11

Palko v. Connecticut,302 U.S. 319 (1937).. . . . . . . . . . . . . . . . . . . . 8

Paul v. Davis,424 U.S. 693 (1976).. . . . . . . . . . . . . . . . . 2, 7, 8

Planned Parenthood v. Lawall,307 F.3d 783 (9th Cir. 2002). . . . . . . . . . . . . . . . 10

Skinner v. R.R. Labor Executives' Association,489 U.S. 602 (1989).. . . . . . . . . . . . . . . . . . . . 11

Thorne v. City of El Segundo,726 F.2d 459 (9th Cir. 1983). . . . . . . . . . . . . . 9, 10

Tucson Woman's Clinic v. Eden,379 F.3d 531 (9th Cir. 2004). . . . . . . . . . . . . . . . 10


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Vitarelli v. Seaton,359 U.S. 535 (1959).. . . . . . . . . . . . . . . . . . . . 16

Washington v. Glucksberg,521 U.S. 702 (1996).. . . . . . . . . . . . . . . . . . . 2, 8

Webster v. Doe,486 U.S. 592 (1988).. . . . . . . . . . . . . . . . . . . . 14

Whalen v. Roe,429 U.S. 589 (1977).. . . . . . . . . . . . . . . . . . . . 8

Statutes:

5 U.S.C. § 7311.. . . . . . . . . . . . . . . . . . . . . . . 35 U.S.C. § 7532.. . . . . . . . . . . . . . . . . . . . . . . 15

15 U.S.C. § 278g-3(a).. . . . . . . . . . . . . . . . . . . . 5

40 U.S.C. § 11331(c). . . . . . . . . . . . . . . . . . . . . 1840 U.S.C. § 11331(b)(1).. . . . . . . . . . . . . . . . . . . . 540 U.S.C. § 11303(b)(5)(A). . . . . . . . . . . . . . . . . . . 5

42 U.S.C. § 2455(a).. . . . . . . . . . . . . . 4, 5, 13, 14, 15

44 U.S.C. § 3543(a).. . . . . . . . . . . . . . . . . . . . . . 544 U.S.C. § 3544(a)(1)(A).. . . . . . . . . . . . . . . . . . 544 U.S.C. § 3544(a)(1)(B)(i). . . . . . . . . . . . . . . . . . 5

Regulations:

71 Fed. Reg. 29,396 (May 22, 2006). . . . . . . . . . . . . . 18

Orders:

Executive Order No. 10,450, 18 F.R. 2489 (1953).. . . . . . . 3


United States Senior District Judge Edward C. Reed, Jr.,1

of the District of Nevada, sitting by designation.

“A ” denotes a citation to the Addendum to this petition.2

INTRODUCTION AND SUMMARY

Pursuant to Federal Rules of Appellate Procedure 35 and 40,

the government respectfully seeks rehearing of the panel’s

decision and suggests that the case warrants rehearing en banc.

The panel’s sweeping decision expands the constitutional right of

informational privacy so broadly as to cast a cloud on virtually

every form of reference check, and conflicts with decisions of

the D.C. Circuit and the Fifth Circuit.

The panel (Thompson, Wardlaw, Reed ) held that the National1

Aeronautics and Space Administration (NASA) violated the

Constitution in requiring contractor employees at the Jet

Propulsion Laboratory (JPL) to undergo the same minimal

background screening that is required of all civil service

employees in analogous nonsensitive positions. Abandoning the

analytical framework established by the Supreme Court and this

Court, the panel concluded that written governmental questions to

employees and their references, which are designed to elicit

“private information that ‘is not generally disclosed by

individuals to the public,’” must be “deemed to implicate the

right to informational privacy.” A13 (citation omitted). The2

decision has no doctrinal basis and ignores the repeated

strictures of the Supreme Court and this Court that

constitutionally protected interests in privacy and autonomy are


Although the case came before the panel on denial of a3

preliminary injunction, it reversed the district court on thebasis of asserted errors of law. The panel did not suggest thatfurther factual development was required, or that any suchdevelopment would affect its view of the merits. Moreover, thebalancing of the equities and analysis of the merits in this casepresent identical questions, and it was on that basis that thepanel felt free to reverse the district court. The panelreasoned that plaintiffs “face a stark choice – either violationof their constitutional rights or loss of their jobs.” A16. Theperceived harm is thus coextensive with the recognition of aconstitutional right. If responding to the background check doesnot violate a constitutional privacy right, it is also does not

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limited to matters “fundamental or implicit in the concept of

ordered liberty.” Paul v. Davis, 424 U.S. 693, 713 (1976)

(internal quotation marks omitted) (privacy); see Washington v.

Glucksberg, 521 U.S. 702, 720-722 (1996) (autonomous decisions).

The panel similarly erred in holding that neither NASA’s own

organic statute nor the Federal Information Security Management

Act (FISMA) permits the agency to impose uniform background check

procedures for contractor employees and agency employees. A10-

A12. The ruling is flatly at odds with the unambiguous language

of NASA’s statutory authorization. The decision also threatens

the government’s general ability to undertake basic security

precautions by setting aside the requirements mandated by the

Commerce Department and the Office of Management and Budget

(OMB), based on the panel’s fundamental misunderstanding of

FISMA.

The panel’s ruling rests on legal errors of exceptional

importance and threatens significant consequences. We

respectfully urge that the case should be reheard en banc. 3


result in imminent irreparable harm. The decision thus presentsquestions of law and is ripe for en banc review.

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STATEMENT

A. Statutory and Regulatory Background.

1. The California Institute of Technology (Caltech)

operates JPL, a federal facility, pursuant to a contract with

NASA as an integral part of the nation’s space program. In

contrast to the other nine NASA centers, all positions at JPL are

filled by contractors employed by Caltech. These contract

employees perform duties functionally equivalent to those of

civil service employees at other NASA centers, and have access to

NASA physical and logical systems (i.e., information technology)

similar to that of their federal employee counterparts. ER 469-

470.

In 2007, NASA amended its contract with Caltech to require

that every JPL employee undergo a National Agency Check with

Inquiries (NACI), the same background investigation required of

government civil service employees, before he or she can obtain

an identification badge needed for access to JPL’s facilities.

ER 649, 652, 658.

The NACI reflects the minimum level of background

investigation for federal employees in the competitive civil

service that has been required since the promulgation of

Executive Order No. 10,450, 18 Fed. Reg. 2,489 (1953), reprinted

as amended in 5 U.S.C. § 7311, in 1953. Standard Form 85 (SF-85)


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– “Questionnaire for Non-Sensitive Positions” – asks where an

employee or applicant has lived, worked, and gone to school.

A24-A31. The form also requires a statement as to whether the

applicant has used illegal drugs in the past year and grants

immunity from prosecution based on the applicant’s truthful

response. A30. Written inquiries, including Form 42 –

“Investigative Request for Personal Information” – are sent to

educational institutions, former employers, landlords, and

references. A32-A33. If it is determined that a candidate

should not be granted access to federal facilities, he or she is

made aware of the reasons for that conclusion and may challenge

the determination. ER 951.

2. The contract amendment reflected determinations about

appropriate security measures by NASA under the Space Act, and by

the Commerce Department, the National Institute of Standards and

Technology (NIST), and OMB under FISMA.

The Space Act provides that the NASA Administrator “shall

establish such security requirements, restrictions, and

safeguards as he deems necessary in the interest of the national

security,” and provides that “[t]he Administrator may arrange

with the Director of the Office of Personnel Management for the

conduct of such security or other personnel investigations of the

Administration’s officers, employees, and consultants, and its

contractors and subcontractors and their officers and employees,

actual or prospective, as he deems appropriate.” 42 U.S.C.


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§ 2455(a).

FISMA makes the head of each agency responsible for

“providing information security protections commensurate with the

risk and magnitude of the harm resulting from unauthorized

access, use, disclosure, disruption, modification, or destruction

of” agency information, 44 U.S.C. § 3544(a)(1)(A), and vests

special responsibilities in the OMB Director, the Secretary of

Commerce, and NIST, a non-regulatory agency within Commerce. See

44 U.S.C. §§ 3543(a), 3544(a)(1)(B)(i), 40 U.S.C. § 11331(b)(1),

40 U.S.C. § 11303(b)(5)(A), 15 U.S.C. § 278g-3(a) (collectively

giving the Secretary of Commerce authority to promulgate

compulsory information security standards in coordination with

the OMB Director, based on standards recommended by NIST).

In 2004, the Commerce Department and NIST were tasked with

responding to concerns outlined in Homeland Security Presidential

Directive 12 (HSPD-12), which sought to eliminate the “[w]ide

variations in the quality and security of forms of identification

used to gain access to secure Federal and other facilities where

there is a potential for terrorist attacks.” ER 460. The

President directed agencies to implement the order in accordance

with “guidance issued by OMB, which shall ensure compliance.” ER

460.

The resulting standards were published by the Commerce

Department in Federal Information Processing Standards (FIPS)

201-1. ER 842. The requirements for identity credentials for


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federal and contractor employees established by FIPS 201-1

include initiation of a NACI. ER 856. OMB issued guidance on

implementation of HSPD-12, specifying the times by which agencies

should complete security investigations. ER 449.

3. In 2005, NASA updated the NASA Procedural Requirements

1600.1 to incorporate FIPS 201, including the NACI requirement.

NASA security standards of this kind may be incorporated into

NASA contracts through the Federal Acquisition Regulations (FAR),

and NASA modified its contract with Caltech to standardize

security requirements between its employees and its contractors.

ER 476, 649.

B. Prior Proceedings.

Plaintiffs are scientists, engineers, and administrative

support personnel employed by JPL. ER 811. The district court

(Wright, J.) denied their motion for a preliminary injunction,

concluding that they could not establish a likelihood of success on

the merits of their constitutional and statutory claims, and that

the government had established that its use of the information

requested in SF-85 was tailored to advance its legitimate interest

in enhancing security at federal facilities. ER 18-25.

A panel of this Court (B. Fletcher, Reinhardt, Berzon) issued

a temporary injunction pending appeal. A20-A23. Following

expedited briefing, the merits panel reversed the ruling of the

district court, concluding that the background requirement was

issued without statutory authority and that it violated


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constitutional protections of informational privacy.

REASONS WHY THE PETITION SHOULD BE GRANTED

I. In Holding Basic Background Checks Unconstitutional,The Decision Departs From Precedent And Frustrates TheAbility Of The Political Branches To Protect GovernmentFacilities.

A. Re-defining the scope of constitutional protections, the

panel declared that whenever governmental questions are designed

to elicit “private information that ‘is not generally disclosed

by individuals to the public,’” then these questions “must be

deemed to implicate the [constitutional] right to informational

privacy.” A13 (quoting In re Crawford, 194 F.3d 954, 958 (9th

Cir. 1999)). On this basis, the panel held that the government

implicates constitutional privacy concerns by asking designated

references if they are aware of adverse information regarding an

employee’s “abuse of alcohol or drugs,” “financial integrity,”

“mental or emotional stability,” “general behavior or conduct,”

and “other matters.” A13; A33.

This holding casts a cloud over virtually every type of

reference check and cuts the privacy right free of its

constitutional moorings. The Supreme Court has made clear that

“[t]he personal rights found in [the] guarantee of personal

privacy must be limited to those which are ‘fundamental’ or

‘implicit in the concept of ordered liberty,” such as those

relating to “marriage, procreation, contraception, family

relationships, and child rearing and education.” Paul, 424 U.S.


In mandating a focused historical analysis, the Court in4

Glucksberg cautioned that the fact “[t]hat many of the rights andliberties protected by the Due Process Clause sound in personalautonomy does not warrant the sweeping conclusion that any andall important, intimate, and personal decisions are soprotected.” 521 U.S. at 727.

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at 713 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).

As the Court explained in Glucksberg, its analysis in determining

the scope of protected privacy interests and autonomous

decisionmaking has “been carefully refined by concrete examples

involving fundamental rights found to be deeply rooted in our

legal tradition,” an approach that “tends to rein in the

subjective elements,” and which “avoids the need for complex

balancing of competing interests in every case.” 521 U.S. at

722. The panel here made no attempt to confine the scope of

constitutionally protected interests to those “implicit in the

concept of ordered liberty,” or to undertake the precisely

focused historical inquiry mandated by Glucksberg in determining

what interests fall within the ambit of constitutional

protection.4

The impact of this departure from precedent is exacerbated

by the panel’s failure to distinguish between the interest in

avoiding disclosure of information to the government and the

interest in avoiding disclosure by the government. Informational

privacy jurisprudence has centered on the interests implicated

when the government discloses highly personal information to the

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


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safeguards against public dissemination of highly personal

medical information were sufficient to avoid constitutional

concerns). The panel conflated the standards applied to public

disclosures with those relevant to a governmental request for

information. The panel’s reliance on Crawford, in which the sole

issue was the re-disclosure of information to the public,

typifies this error. See 194 F.3d at 957.

In conflating these standards and in departing from settled

principles of constitutional analysis, the panel’s decision

conflicts starkly with decisions of the D.C. and Fifth Circuits

rejecting privacy-based challenges to background checks similar

to or more intrusive than the one at issue here. See AFL-CIO v.

Dep’t Housing & Urban Devel., 118 F.3d 786, 793-794 (D.C. Cir.

1997) (“[W]e hold that the individual interest in protecting the

privacy of the information sought by the government is

significantly less important where the information is collected

by the government but not disseminated publicly.”); Nat’l

Treasury Employees Union v. U.S. Dep’t Of Treasury, 25 F.3d 237,

244 (5th Cir. 1994) (noting “in determining generally the

perimeters of privacy” that the challenged questionnaire required

only disclosure “to the IRS, as their employer – not to anyone

else, and certainly not to the public”).

Indeed, Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir.

1983), is the only case cited by the panel in which privacy

interests arose from governmental questions rather than


In Planned Parenthood v. Lawall, 307 F.3d 783 (9th Cir.5

2002), the Court upheld procedures requiring minors to seekjudicial leave to obtain an abortion. Although the decisionnoted the concerns raised by the questioning, it focused not onthe fact of a minor’s initial disclosure, but rather on thepossibility of unauthorized re-disclosure and court personnel’saccess to the minor’s petition. Id. at 790.

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governmental re-disclosure. In that case, in sharp contrast with

the present action, a job applicant was subjected to a polygraph

interrogation and asked about her sexual encounters, pregnancy,

and miscarriage, matters which, as the Court noted, go to the

heart of “such basic matters as contraception, abortion,

marriage, and family life.” Id. at 462 n.1, 467-468. Even in

Thorne, moreover, the constitutional interest in non-disclosure

merged, to some extent, with the defendant’s decision to deny

employment on the basis of the information elicited. See id. at

471 (“[R]eliance on these private non-job-related considerations

by the state in rejecting an applicant for employment violates

the applicant’s protected constitutional interests”). 5

The panel cited no cases in which questions to third party

references were held to infringe on privacy interests. This

Court has recognized a constitutional right to privacy with

respect to medical information held by a third-party health care

provider, see Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 553

(9th Cir. 2004), but no court has ever held that seeking

information from designated references for employment purposes

implicates a constitutionally protected right to privacy. The


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panel’s disregard for the nature of the asserted privacy

intrusion is highlighted by its reliance on Norman-Bloodsaw v.

Lawrence Berkeley Laboratory, 135 F.3d 1260 (9th Cir. 1998). In

contrast to the information sought here, that case involved “the

question whether a clerical or administrative worker who

undergoes a general employee health examination may, without his

knowledge, be tested for highly private and sensitive medical and

genetic information such as syphilis, sickle cell trait, and

pregnancy.” Id. at 1264.

B. The panel further erred by finding a constitutionally

protected interest implicated by a question regarding illegal

drug use and treatment thereof within the previous year. The

panel mistakenly declared that the “Supreme Court has made clear,

in the Fourth Amendment context, that individuals’ reasonable

expectations of privacy in their medical history includes

information about drug use, and, by analogy, drug treatment or

counseling.” A13 (citing Skinner v. R.R. Labor Executives’

Ass’n, 489 U.S. 602, 617 (1989)). Skinner actually held that in

the Fourth Amendment context there is an expectation of privacy

in the act of urination and in the amount of information that

chemical analysis of urine can reveal. See 489 U.S. at 617.

The Skinner Court did not remotely suggest the existence of

a privacy interest in refusing to inform a prospective government

employer of recent violations of the law, including the drug

laws. Cf. Nat’l Treasury Employees Union, 25 F.3d at 243 & n.3


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(“Surely anyone who works for the government has a diminished

expectation that his drug and alcohol abuse history can be kept

secret, given that he works for the very government that has

declared war on substance abuse”); Mangels v. Pena, 789 F.2d 836,

839 (10th Cir. 1986) (“The possession of contraband drugs does

not implicate any aspect of personal identity which ... is

entitled to constitutional protection. Validly enacted drug laws

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

(citations omitted).

C. Moreover, even if the background check requirement did

implicate a constitutionally protected privacy interest, it would

plainly pass constitutional muster. Even when re-disclosure

threatens to infringe on a protected privacy concern, “the right

to informational privacy . . . is not absolute,” but rather “is a

conditional right which may be infringed upon a showing of proper

governmental interest.” Crawford, 194 F.3d at 959 (internal

quotation marks omitted). NASA has done no more than require

that contract employees with long-term access to its facilities

go through the same screening process as federal employees in

comparable non-sensitive positions. See ER 766 (declaration of

JPL security coordinator stating that once within the facility,

those with “unescorted access privileges to JPL ha[ve] the

physical ability to get very close to facilities where sensitive

or classified work is conducted”).


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II. The Panel’s Statutory Ruling Places Wholly UnwarrantedLimitations On The Government’s Ability To UndertakeBasic Security Precautions To Protect FederalFacilities.

A. Invoking its authority under the Space Act, NASA

amended its Procedural Requirements 1600.1 to incorporate the

NACI requirement and other standards set out in FIPS 201,

explaining that these requirements represented “appropriate

investigation and adjudication [requirements] for reliability

prior to the issuance of permanent NASA photo-ID.” ER 511. NASA

noted that these requirements would “assist NASA Centers and

component facilities in executing the NASA security program to

protect people, property, and information” by establishing

“security program standards and specifications necessary to

achieve Agency-wide security program consistency and uniformity.”

ER 480.

The agency’s decision to adopt uniform background screening

requirements for federal employees and long-term contractor

employees falls well within the Space Act’s broad grant of

authority. The statute authorizes NASA to “establish such

security requirements, restrictions, and safeguards as [the NASA

Administrator] deems necessary in the interest of the national

security.” 42 U.S.C. § 2455(a). In addition, it empowers the

Administrator to “arrange with the Director of the Office of

Personnel Management for the conduct of such security or other

personnel investigations of the Administration’s officers,


The statute in Webster authorized termination of an agency6

employee “whenever the Director shall deem such terminationnecessary or advisable in the interests of the United States” Id.at 600 (internal quotation marks and emphasis omitted).

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employees, and consultants, and its contractors and

subcontractors and their officers and employees, actual or

prospective, as he deems appropriate[.]” Id.

This broad language “fairly exudes deference,” Webster v.

Doe, 486 U.S. 592, 600 (1988), and does not readily admit of

judicially implied limitations. Indeed, the Court in Webster

held that similar language foreclosed “the application of any

meaningful judicial standard of review.” Id. There can be no6

doubt that NASA’s interpretation of the Space Act is, at a

minimum, reasonable – an issue that the panel did not address.

See, e.g., Cal. Dep’t of Water Res. v. FERC, 489 F.3d 1029, 1036

(9th Cir. 2007) (noting deference owed to agency’s interpretation

of an act it is charged with administering).

The panel’s conclusion that NASA may require background

investigations only with respect to employees occupying

“sensitive” positions, A12, is without anchor in the statute.

Although the statute “fairly exudes deference” to the agency, the

panel accorded none. Instead, the panel observed that the Space

Act was enacted in 1958, two years after the decision in Cole v.

Young, 351 U.S. 536 (1956), which held that an agency head’s

power to summarily suspend and remove an employee if “necessary

or advisable in the interests of national security,” under 5


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U.S.C. § 7532 (formerly 5 U.S.C. § 22-1), was limited to those

employees in “sensitive” positions who could pose “an immediate

threat of harm to the ‘national security,’” thus rendering the

normal dismissal procedures inadequate. Cole, 351 U.S. at 546-

547. The panel declared that Congress had used “identical

limiting language in the Space Act” and that this use “so soon

after Cole was decided strongly suggests that Congress expected

the term ‘national security’ to be similarly construed in this

context.” A12.

The panel’s rewriting of the statute fails at every level.

First, Congress did not include the “identical limiting language”

at issue in Cole in the Space Act. A12. The Space Act

specifically authorizes the Administrator to arrange for “such

security or other personnel investigations of the

Administration’s officers, employees, and consultants, and its

contractors and subcontractors and their officers and employees,

actual or prospective, as he deems appropriate[.]” 42 U.S.C.

§ 2455(a). This language does not reference “national security”

and has no counterpart in Cole.

Second, Cole did not purport to define the meaning of

“national security” with regard to all personnel matters. The

issue in Cole was whether the statute permitted summary discharge

of employees based on the “national security.” The Court

explained that it was “clear from the statute as a whole that

[this] term was intended to comprehend only those activities of


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the Government that are directly concerned with the protection of

the Nation from internal subversion or foreign aggression,” id.

at 544 (emphasis added), and the Court buttressed its

interpretation by reference to the legislative history, see id.

at 548.

Moreover, the Supreme Court has made clear that Cole did not

establish a general rule for determining what personnel

requirements might be in the interests of the national security,

explaining in Carlucci v. Doe, 488 U.S. 93 (1988), that Cole

turned on the “summary nature” of the power to dismiss at issue

there. Id. at 95. The Court further stated that it was

“unconvinced” that Congress intended “adherence to the standard

of Cole v. Young,” even in all cases involving a “national

security termination.” 488 U.S. at 95. See also Vitarelli v.

Seaton, 359 U.S. 535, 539 (1959) (construing Cole narrowly as

“not permit[ting] the discharge of nonsensitive employees

pursuant to procedures authorized by that Act if those procedures

were more summary than those to which the employee would have

[otherwise] been entitled”).

B. The ruling with respect to the Space Act undermines

NASA’s authority to take fundamental precautions. The panel’s

equally erroneous conclusions with regard to FISMA more broadly

threaten the government’s ability to safeguard information and

information systems.

The President, in issuing HSPD-12, tasked the Commerce


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Department and NIST with developing uniform identification

requirements for federal employees and contractors. NIST

recommended requirements for all contractor employees, the

Commerce Department approved these requirements, and OMB directed

their adoption.

The panel nevertheless concluded that the background check

requirement was issued without statutory authority on the theory

that the “NACI requirement is hardly limited to protecting

‘Federal information systems.’ Indeed, the background

investigations are required of all JPL personnel, whether or not

they have access to information systems, and therefore cannot be

entirely justified, if at all, by FISMA.” All.

The panel’s cursory conclusion is difficult to comprehend.

FISMA protects “information” as well as “information systems,”

and its concerns are not limited to persons with authorized,

electronic access to “information” or “information systems.” By

its terms, the statute is concerned with preventing “unauthorized

access,” misuse, and disruption of information and information

systems. The statute nowhere limits acceptable protective

measures to only those people with electronic access to

information systems, as the panel appears to have assumed.

The panel similarly erred in its understanding of HSPD-12

and its relation to the FISMA process. The Commerce Department

and OMB possessed independent authority under FISMA to issue the

requirements without regard to HSPD-12; the panel made no attempt


The panel’s willingness to substitute its judgment for7

that of the agencies responsible for implementing FISMA isepitomized by its unexplained declaration that “many of thequestions in SF 85 and Form 42 seek much more information thanthat which would securely and reliably identify the employees.” A10. What constitutes secure identification depends upon thepurposes for which a credential is issued. See, e.g., 71 Fed.Reg. 29,396, 29,398 (May 22, 2006) (discussing background checkand security threat assessment required prior to issuance ofbiometric transportation security credential to merchantmariners).

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to explain its apparent assumption that statutory authority must

be reinforced by presidential directive to be valid. Nor is

there any reason to believe that the Commerce Department and OMB

– which is itself part of the Executive Office of the President –

misunderstood the President’s directive. See generally Kester v.

Campbell, 652 F.2d 13, 15 (9th Cir. 1981) (“In light of an

agency’s presumed expertise in interpreting executive orders

charged to its administration, we review such agency

interpretations with great deference.”). Moreover, if the

President considered the security measures imposed by the

Commerce Department inappropriate or inconsistent with HSPD-12,

he could have invoked his authority under FISMA to “disapprove or

modify the standards and guidelines,” prescribed by the Secretary

of Commerce. 40 U.S.C. § 11331(c).7










































Documents

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