Nelson v. National Aeronautics and Space Administration ( 2007 )

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. No. 07-56424
FOSTER; MATTHEW P. GOLOMBEK;
D.C. No.
VAROUJAN GORJIAN; ZAREH
CV-07-05669-ODW
GORJIAN; ROBERT J. HAW; JAMES
KULLECK; SHARLON L. LAUBACH;  Central District of
California,
CHRISTIAN A. LINDENSMITH;
Los Angeles
AMANDA MAINZER; SCOTT
MAXWELL; TIMOTHY P. MCELRATH; ORDER
SUSAN PARADISE; KONSTANTIN
PENANEN; CELESTE M. SATTER;
PETER M. B. SHAMES; AMY SNYDER
HALE; WILLIAM JOHN WALKER;
PAUL R. WEISSMAN,
Plaintiffs-Appellants,

14095
14096 NELSON v. NASA
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; CARLOS

M. GUTIERREZ, 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 appel-
lants do not object, such as appellant’s name, date of birth,
place of birth, and social security number. However, the ques-
tionnaire also includes inquiries to which appellants do object,
NELSON v. NASA 14097
including an inquiry about counseling they may have
received. Appellants also object to the general waiver for
release of information 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 question-
able, 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 Propul-
sion 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, 598-99 (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 informa-
tion, they are scheduled to lose their jobs before the appeal
will be heard. On the other side of the scale, there is no emer-
gency as to appellees’ need for the answers to the question-
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 Direc-
tive 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 identifi-
cation 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, Califor-
nia.
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