No, this is not – for those of you old enough to remember I Dream Of Jeannie ­– Major Anthony Nelson suing NASA after all these years.  Instead, a group of Caltech employees assigned to work at NASA’s Jet Propulsion Lab (“JPL”) in California sued NASA when the federal agency insisted that they submit to background checks after, in many cases, having worked there for 20+ years or resign their employment.  The Supreme Court will address the question whether NASA violated the plaintiffs’ constitutional right to informational privacy by (1) requiring the contract employee to answer whether he or she had received counseling or treatment for illegal drug use in the prior year and/or (2) asking the contract employees’ designated references for any adverse information bearing on their suitability to work at a federal facility. 

The case is before the Supreme Court on NASA’s petition for review of the Ninth Circuit’s decision granting a preliminary injunction barring the government from implementing its background checks at JPL.  Oral argument is scheduled for October 5, 2010.

NASA contends that its collection of employment-related information through routine background checks does not violate the contract employee’s constitutional right to informational privacy.  It argues that it has legitimate concerns about its workers’ illegal drug use and the steps that they have taken to address those issues.  Likewise, NASA argues that it is “plainly reasonable” for the government to ask an individual’s designated references whether he or she should be employed by the government.  NASA also notes that none of the information that it receives through its background questioning would be publicly disclosed or used for non-employment purposes.  To the contrary, NASA argues that the form it uses to obtain information about illegal drug use promises that the information would not be used for criminal prosecution purposes and that all of the information collected would be protected from further disclosure under the federal Privacy Act.

The plaintiffs respond by noting that they are neither federal government employees or job applicants and that they do not work on any projects at JPL that are classified or related to national security.  In addition, they all submitted to standard background checks when they became employed at Caltech, the sufficiency of which the government has never challenged.  Further, according to the plaintiffs, NASA is not required by law to conduct background investigations of its contract employees.   Keeping all of this in mind, the plaintiffs argue that the government has shown insufficient justification for intruding into their medical, financial, sexual and other highly sensitive personal information and making determinations of their “suitability” to work at JPL based on those factors.

Because NASA is a federal agency, the Supreme Court’s decision is going to turn on the constitutionality of the government’s background inquiries, which will only directly impact public sector employers.  When the Court issues its decision, however, we will analyze it and report back on whether there are any lessons to be learned for private employers as well.