Roberts: We will hear argument first this morning in Case 09-530, National Aeronautics
and Space Administration v. Nelson.
Mr. Katyal.
Katyal: Thank you, Mr. Chief Justice, and may it please the Court:
Background checks are a standard way of doing business.
The Government has required them for all civil service employees since 1953 and for
contractors since 2005.
If the Ninth Circuit in this case held that a constitutional right to informational
privacy precluded asking the questions it asks, that was wrong for two basic reasons.
First, the background checks' mere collection of information with accompanying
safeguards vitiates no constitutional privacy interest.
These checks have been going on for millions of employees for dozens of years.
They are part of the employment process.
They are manifestly not roving checks on random individuals.
Sotomayor: Mr. Katyal, is there any limit to what questions the Government
can ask--
Katyal: Well, the--
Sotomayor: --an applicant?
Katyal: --The -- the limits are -- in this case, are the ones on SF-85 and Form 42.
And we do think that that's a fairly restrict--
Sotomayor: What does that mean?
Katyal: --Well, those two--
Sotomayor: Could you ask somebody, what's your genetic make-up, because we don't
want people with a gene that is predisposed to cancer?
Whatever other -- could you ask that?
Katyal: --Well, I think that the Court doesn't need to confront that--
Sotomayor: We do, because I have to start with the question of: What are the limits
on the Government, if any?
Are you taking the position that as an employer, there are absolutely none, or are
you taking the position that there are some, and what would they be?
Katyal: --Our position is in a case such as this, where there are collections
on the Government's dissemination of the information--
Sotomayor: So what you are saying is, there is no limit?
Katyal: --I -- I think that this Court in Whalen -- there is no decision thus far
that has recognized any constitutional limit on the Government's collection
of information, so long as there are accompanying safeguards on the disseminations
and--
Ginsburg: General Katyal, why are we getting into this?
Because this case, it seems to me, is a challenge -- a challenge to a preliminary
injunction which was quite narrow.
There was only one question at issue.
There is no cross-appeal, is there?
Katyal: --There -- there is no cross-appeal.
Ginsburg: So we have Form 85.
The only thing that's in contention there is the question about treatment or counsel.
Nothing else.
So why are we talking about the universe of what questions might be asked?
And on the other form, I take it, it's just the so-called open-ended questions,
not everything on the form.
Katyal: I quite agree, Justice Ginsburg.
That's what I was trying to say to Justice Sotomayor; that is, I think that this
case doesn't force the Court to answer questions it has never really answered,
which are the outer limits of what the Government can do in terms of the collection
of information.
Here you have a narrow decision by the Ninth Circuit, one whose reasoning,
I think, could radiate very broadly and undermine government -- the Government's
background check--
Ginsburg: What do you think has been -- there hasn't been a formal injunction
entered, a preliminary -- a preliminary junction, has there?
Katyal: --It's only -- it's at the preliminary injunction stage.
But our -- our point is that the reasoning that the Ninth Circuit used, if adopted
-- if adopted to create a permanent injunction, could preclude the Government
from asking all sorts of questions in background -- in background checks.
Not just the ones it isolated here, but more general ones, because the Ninth Circuit
decision is essentially a how-to manual on how to question various individual
questions and micromanage them and inject Federal courts into--
Ginsburg: I thought that the -- the entire Form 85 was approved.
There's no questions you could ask about, have you used drugs within the last year?
It's only the question about treatment and counseling that is at issue.
Right?
Katyal: --That's -- that's all that the Ninth Circuit ruled on at the preliminary
injunction stage.
Roberts: Does that -- does that ruling stop you from asking that question right
now throughout the Ninth Circuit?
Katyal: Which question?
The drug treatment question?
Roberts: No, no, no.
The -- yes.
Yes, the counseling and treatment question.
Katyal: Well, there's a -- the mandate has been stayed, so we haven't been able to--
Roberts: Right.
But if we sustained -- if we sustain the preliminary injunction, the Government
can't ask that question throughout the -- the -- the reach of the Ninth Circuit?
Katyal: --That's exactly correct.
Kennedy: And -- and if we did so, it would be because there is an underlying
privacy right that is somewhat ill-defined or undefined?
Katyal: Exactly, Justice Kennedy.
And if this Court were to embrace that reasoning -- and this is my answer to you,
Justice Ginsburg, as well -- then it doesn't just reach drug treatment.
I could imagine other litigants doing it for other forms of questions, whatever
they may be.
Ginsburg: But the -- the circuit precedent, as far as the other questions on Form
85, the circuit said that's okay.
It's permissible to ask those questions.
Katyal: Thus far, that's correct.
But I can imagine other litigants coming in, and maybe not just with respect to these
questions but questions on SF-85P or Form 86, any number of other--
Scalia: Mr. Katyal, what is the well-defined, the well-defined, constitutional
right to institutional -- to informational privacy that the Government is -- is willing
to acknowledge?
You -- you apparently don't -- don't challenge the existence of such a constitutional
right.
Katyal: --Justice Scalia, our position is that the Court doesn't need to answer
that question.
It's just like Whalen, because in Whalen this Court assumed the existence of some
sort of constitutional right and then said: Is that right violated here?
Scalia: It's a strange way to proceed.
We normally don't do that, see?
If there were a constitutional right, would it cover this?
Katyal: I agree--
Scalia: Do we do that in cases?
Katyal: --I agree that in many other contexts, it might not be appropriate,
but here I think there are some good reasons why.
This Court has had special reticence to the rule broadly in the range of privacy,
and I think the reason is privacy is something that is in flux in ways that other
things aren't, both in terms of our social understandings, technology, and legislation
itself.
And for that reason, I think this Court has spoken narrowly whenever it's dealt
with--
Scalia: That would justify not defining it broadly or narrowly.
It wouldn't justify not reaching the question of whether there is any such constitutional
right at all.
Katyal: --Justice Scalia, that's what this Court has done throughout its history.
Whalen was a unanimous decision and Nixon, on that particular question, I don't
think there was a disagreement about.
So--
Alito: How can the Court determine that the right is not violated here without
having some idea about either the existence or the contours of the right?
Katyal: --Well, I think it would just be like in Whalen itself.
So in Whalen, the Court said there might be some right to informational
privacy, but so long as there are safeguards on the disclosure, the Government's
dissemination of the information, that means that there is no--
Alito: Is it your argument that the Government can collect whatever information
it wants from private individuals so long as the information is not publicly
disseminated?
Katyal: --No, that's not our position.
Our position here is that the Government can collect information so long as it is not
disseminated in the employment context.
And this case, unlike Whalen, is one that has that added fact to it, that the Government
here is asking--
Kennedy: Well, does it help us in finding what this residual background right is and
asking you: Why is it that you can't disclose it?
Katyal: --I'm sorry?
Kennedy: Why can't you disseminate the information?
Katyal: Surely -- we are restricted by statute, the privacy of--
Kennedy: Let's assume no statute.
Katyal: --If you assume--
Kennedy: In other words, this is just testing whether there is some background
constitutional right and how to define it, if we have to use that as a beginning
premise.
Katyal: --Absolutely.
If we took out all of the safeguards that are at issue here, then the case wouldn't
be like Whalen or Nixon, in which you had those -- in which you had safeguards
in the dissemination.
And then you would have to confront the question, which we think you shouldn't
confront in this case, for the reasons I said to Justice Scalia.
Kennedy: And what would be your position if the -- all this information were disclosed?
Or that there was an attempt to disclose all the information, and they asked you for
your advice on a constitutional basis.
Katyal: Right.
I mean, our position is that the Court really shouldn't, for all of the reasons
I said, get into it; but if the Court had to get into it, and asked, is there some
constitutional right that would be violated, Justice Kennedy, by your hypothetical,
our answer would be no.
But we do think the way that this has been traditionally been handled is legislation.
Safeguards for political--
Roberts: So when you say your position would be no, you mean that there is no right
of any kind under your -- I know you don't want us to reach it, but you would say
there is no right of any kind for a citizen to tell the Government: That is none
of your business.
The Government will decide that it can ask anything of a citizen, so long as you don't
disclose it.
Katyal: --Well, in the employment/proprietor context.
Okay?
So if the Court had to confront that question, it would apply the matrix that Justice
Scalia has talked about, the Glucksberg matrix, of whether a right -- the right
is firmly rooted in the traditions of the people, and ask: Is the Government--
Roberts: Do you think it's firmly rooted in our traditions that there is some right
to tell the Government: That's none of your business?
Katyal: --I think there is some right.
The question about whether it employs in the unique employment/proprietor
context is one the Court hasn't confronted, and our strong position here is the Court
shouldn't confront it.
Alito: What is the test -- what is the test for determining what sort of questions
can be asked in the employment context?
Is there any limit?
Suppose the -- suppose the Government says: Well, we want to know all about your
diet.
We want to know whether you smoke cigarettes.
We want to know everything you read.
We want to know what your hobbies are, what forms of entertainment you enjoy, sexual
practices, every aspect of your private life, just because that gives us a better
picture of who you are as an employee.
Is that okay?
Katyal: Sure.
No, there are limits, and I should have said this earlier.
If the Government's collection of information or the disclosure of the information
burdens some other fundamental constitutional right, that is certainly one limit.
So if the Government were collecting information, Justice Alito, on sexual practices
of its employees, it may burden the exercise of other rights.
Roberts: Yes, but that's putting those aside.
I mean, what about some of the hypotheticals that Justice Alito posed?
Your diet?
That's certainly relevant in the employment context, right?
They are going to have to pay for your healthcare, worry you might miss things,
miss days of work.
So I guess the point is: Do you think the Government's right to inquire in the employment
context is exactly as broad as a private employer's right?
Katyal: I do think that if the private employer -- the private employers are a good
template.
If the Government is simply mirroring what private employers do, as Justice Scalia
said in O'Connor v. Ortega, that's a good suggestion that what it's doing is reasonable.
Now, to the extent, Justice Alito, that they are gradating far beyond what private
employers do, in terms of asking about eating habits and the like, I do think that
that may pose -- that there may be some limits.
The Court doesn't need to confront that here.
It simply needs to look at the Ninth Circuit's decision, which recognize a broad,
free-standing right against informational collection of its employees to make sure
and -- and realize that that is a serious problem for the way the Government
does business.
Scalia: We do have a legislature, don't we, that could place some limits on what
the Government asks employees or anybody else?
Katyal: Absolutely.
Scalia: It's the same legislature that prohibited the Government from disclosing
a lot of information, isn't it?
Katyal: That's precisely correct.
Scalia: And it's possible that that's the protection that the Framers envisioned,
rather than having courts ride herd on Government inquiries.
Katyal: It's certainly possible, Justice Scalia.
I think that all of these hypotheticals are enormously interesting, but the--
Sotomayor: Were these two forms approved by Congress?
Katyal: --The forms themselves were not approved by Congress, but the Privacy
Act, which is the main restriction--
Sotomayor: That's a restriction on disclosure, but the same Congress can change
that, correct?
Katyal: --That's absolutely correct.
The Privacy Act has been around since 1975 and the Government has collected
-- you know, it's been used millions of times, SF-85.
It's been used 553,000 times in the last four years, and we have not seen the types
of disclosure or complaints that I think animate the worry that my friends on the
other side are saying.
Roberts: What is the reason -- I've had trouble putting my finger on it -- that you
need the information about counseling?
You already have the information, have you used drugs in the past year.
I couldn't tell if you thought the question about counseling was for the good of the
employee -- oh, you are taking steps to -- or was it to allow you to show, well,
it must be serious, because you need counseling.
Katyal: It is for the good of the employee.
Roberts: Well, I've asked you -- whenever the Government comes and says,
"This is for your own good. "
[Laughter]
Roberts: you have to be -- you have to be a little suspicious.
I mean, if it's -- the employee gets to expand upon his or her answer.
They say, tell us about it.
And they can say, don't worry, I'm in counseling or treatment.
And even then it doesn't sound like it's for their good.
It's one thing to say, I had a drink.
It's another thing to say, I'm in AA.
Katyal: Mr. Chief Justice, the way the question is framed is, first they are asked,
have you used illegal drugs in the last year?
And then -- and then, if the answer is yes, provide details and then indicate
any treatment or counseling received.
Roberts: I have a question about the way it's worded.
You're -- it says, if you've used it in the last year, detail your involvement
with drugs and any counseling you received.
Do you understand the counseling question to be limited to the past year, or to reach
back as far as--
Katyal: I think that the question itself is vague.
Now, the way that the Office of Personnel Management will process such a form is it
will process anything so long as there is information about just drug use.
Roberts: --But do you think it's required?
I mean, you do sign at the end, this is true to the best -- do you think it's required
to disclose counseling and treatment you received more than a year back?
Katyal: No.
This is unlike, for example, SF-86, which does ask for treatment and counseling
back up to, I think, a 7-year period.
So I think this is a much more narrow inquiry, and I think the reason for that inquiry
is to help the employee.
The Government--
Ginsburg: The answer to that is obvious.
It was raised by the other side.
If it is for the good of the employee, make it voluntary.
Katyal: --Well, Justice Ginsburg, I think that that's the type -- think that's
the type of inquiry that this Court rejected in Whalen.
Because in Whalen, the whole debate in the Court and the district court below was,
well, if you want to stop doctor prescription mills, people providing too many narcotics,
you don't need the names and ages of the patients.
We could change the triplicate forms and redact that.
But what this Court said on the second page of its opinion was it called that Lochnerian,
that Federal courts shouldn't be policing forms and excising or suggesting
random different -- you know, a few different words here or there.
And here, experts put this form together to try and get at, basically, are you using
drugs and are you using treatment which might ameliorate the fact that you had used
illegal drugs in the last year.
Alito: Well, I had thought before the argument that one of the purposes for asking
about treatment was to identify employees who may have undergone treatment on numerous
occasions and dropped out of programs and been unsuccessful, so as to identify
chronic drug abusers.
But I guess in light of what you've just said, that this only reaches back one year,
that is not a purpose of this.
Katyal: That is correct.
And in preparation for this we did survey all of the NASA different centers to ask,
has treatment ever been used in any sort of way to hurt an employee?
And the answer that came back was, no, it has not been used.
It has only been used to help.
It is to retain someone who did use illegal drugs, but is taking steps to mitigate.
Roberts: Well, how do you know -- how do you know that?
I mean, you ask a lot of questions on these forms and they say, well, we're not going
to hire you.
How can you go back and say it was because you put in, you know, in treatment
for drug abuse?
Katyal: Well, the process by which this takes place is the form is filled out.
It's ultimately sent to an adjudicator if there is negative information,
and that -- and that information is then discussed with the candidate for employment
or the employee to see if they have an explanation.
And of the times that this has happened, that someone has been denied, and I think
the number is 128 times over the -- over the last five years, none have been denied
for a positive answer to drug treatment.
Roberts: Over the last five years, this has only come into play 128 times across
the Federal bureaucracy?
Katyal: For Federal contractors.
That is correct.
Roberts: Federal contractors.
Katyal: Yes.
Sotomayor: I'm sorry.
I'm not sure I understand the answer.
Only 128 times has somebody identified themselves as a drug user?
Katyal: 128 times, the SF-85 process, is my understanding, has been used to deny
someone a credential of the Federal contractor--
Sotomayor: So it could be for any other answers as well?
Katyal: --For anything.
Exactly.
About -- and I think there have been about 74,000 contractors that have sought
badges through the SF-85, so--
Sotomayor: Are you representing to us that every employee who is rejected will know
the reason?
Katyal: --That is correct.
That is part of -- that is part of the regulations that are in place, so that if someone
is denied a credential -- and this is, I think, at Joint Appendix, page 180 -- they
are told the reason for that denial.
They are given an opportunity to explain themselves, and a process is then put in place.
There is then also robust appeal and other things that may happen as well.
But one thing that doesn't happen, Justice Sotomayor, is that JPL, the contractor,
is not told the basis for why the person is denied a credential.
That is, it's private as between the Government -- here, NASA -- and the individual
employee.
And that is the--
Sotomayor: So where does the suitability matrix come in?
Katyal: --It doesn't.
Sotomayor: It doesn't?
Katyal: It doesn't.
Sotomayor: And NASA has never used it?
You're representing that to the Court?
Katyal: I'm representing that NASA has -- NASA will not and does not use this employment
-- employee suitability chart to make contractor credentialing decisions.
Ginsburg: Where did it come from?
Katyal: Well, it's -- it's been hard to actually pin down where it came from.
I think it is derived from earlier Office of Personnel Management materials
at a time when it listed out what various crimes were.
And so some of those things that are on there that are quite salacious are things
that OPM, at earlier points in time, looked to, not for contractors, but for Government
employees.
But I can represent to the Court that NASA does not and will not use this chart
for credentialing decisions.
Ginsburg: Do you -- do you have a clear idea of how the Form 42 would have to be amended
if the Respondents are correct?
Form 85, we know we excise "counseling or treatment".
What in the Form 85 did the Ninth Circuit say?
It said "open-ended questions", but I looked at the form and it is not clear to me
which ones they considered open-ended.
Katyal: Justice Ginsburg, I quite agree with you.
I don't think that the Ninth Circuit's reasoning is capable of being ameliorated
easily.
So we talked before about how the drug treatment was just a narrow part of the Ninth
Circuit decision, but this Form 42, the invalidation of Form 42, goes to the heart
of what the Government does all the time and what all employers do.
They ask open-ended questions to figure out whether someone is trustworthy
and reliable.
Sotomayor: General -- I'm sorry.
Go ahead and finish.
Katyal: I think as Judge Kleinfeld said, that's how law clerks are hired.
That's how baristas at Starbucks are hired.
You have to ask these open-ended questions because as an employer, you don't really
know what -- where the pressure points or danger spots in an individual application
are.
Sotomayor: Is your position today that our ruling should say that the Government
is free to ask, as a private employer or contractor -- it is free to ask any question
it wants whatsoever?
Katyal: That is not what we're saying.
We--
Sotomayor: If you were not saying that, then what is the narrower ruling?
Because that's what I thought I heard at the beginning of our colloquy today.
Katyal: --Justice Sotomayor, the narrow rule is what we said in our petition
and what we said on the very last page of our reply brief and all throughout,
which is, this Court should simply say what it said in Whalen, which is assuming
that there is some informational right to informational privacy.
The -- the use of a background check with accompanying safeguards to collect information
doesn't violate the constitutional right to privacy.
Sotomayor: Well, why wouldn't that violate it if the question involved a fundamental
right?
If you were asking the question that Justice Alito asked, which is, what's your sexual
practices in the bedroom, if there are security checks against you disclosing
it, you are saying even that would be okay?
Katyal: I could imagine a circumstance far afield from this one in which the Government's
just mere collection of information about sexual practices might burden the exercise
of those rights.
I'm saying it's not at all present here, and I don't think the Court should get into
it.
But that's a really different question than the one here, which is: Is there some
free-standing right to constitutional privacy that is unburdened by the fact that
there are protections against the disclosure of information?
Here, the Privacy Act imposes strong protections against the disclosure of information.
And so what's left is a very residual interest in the part of the employees.
Sotomayor: Don't -- this is a bit unsatisfying.
Because you start by saying to us, as long as there are some nondisclosure
protections, then virtually any question, whether it impinges a fundamental
right or not, would be okay, because there's -- I don't even know what the Government's
interest is in asking every question it wants to.
There has to be a need for a set of questions, doesn't there?
Katyal: Well, I could imagine an as-applied challenge to, for example, you know,
the hypothetical on sexual practices or whatever.
I do think, as Justice Scalia said, the real check on that is the political
process check.
The fact is that the Government doesn't ask those kinds of questions, and to the extent
it ever did, the Court could confront that in an as-applied challenge.
Ginsburg: I still don't see why that -- why this is before us, because the Ninth
Circuit said some of this form is okay, most of Form 85 is okay, and some of Form
42 is okay.
I thought it was only the questions under 7 and 8, the open-ended questions.
I didn't think the Ninth Circuit had enjoined anything other than those questions.
Katyal: Those questions, Justice Ginsburg, are really the heart of the form.
I mean, those are the most -- in many ways the most important questions, because
they're the ones that employers have to ask because they don't know the weaknesses
in an individual applicant's background.
Kennedy: There are a number of statements in, I guess, the concurrence from the denial
of en banc, explaining how JPL is fairly open, and it is close to the Pasadena
courthouse.
Pasadena residents and judges visit JPL often.
Are there any statements of fact that you don't agree with that are not in the record,
other than the matrix question?
Leave that aside.
Katyal: Yes, I would say a few things.
Number one is I think that the -- the concurring judge did, I think, underestimate
how important security is there.
First of all, there are armed guards when you are coming in.
It is not the campus-like atmosphere.
It's not like a campus that I'm familiar that she described.
The information at the debate at JPL is sensitive, quite sensitive, both, you know,
in terms of scientifically and with respect to our nation's secrets.
And the even more important point about this is the badge that the Plaintiffs
are seeking access to don't -- doesn't just give them access to JPL.
It will also give them other access to all other NASA facilities.
And it's such an important credential that it would allow them to get within,
for example, 6 to 10 feet of the space shuttle as it is being repaired and readied
for launch.
So this is a credential not just for JPL and getting onto JPL, but other places
as well.
If I could reserve the balance of my time.
Roberts: Thank you, General.
Mr. Stormer.
Stormer: Mr. Chief Justice, and may it please the Court:
The issue as now characterized is really how far may a Government go, may this Government
go, to intrude into the private lives of its citizens, both in positions that do not
involve sensitive issues, classified issues, national security issues, or positions
of public trust?
Scalia: Mr. Stormer, what provision of the Constitution are you relying -- I looked
at your table of authorities in your brief, and you have cases listed, you have statutes
listed; there is not a single citation anywhere in your brief to a provision
of the Constitution.
What provision of the Constitution are you relying on.
Stormer: It would mostly fall--
Scalia: I think it's a very nice thing that the Government shouldn't ask intrusive
questions.
I also think that it's a nice thing that the Government should pay a living wage
to its employees, but I don't feel authorized to go around saying how much the Government
should pay each of its employees because there is nothing in the Constitution
about that, and the question is left to Congress.
What do you rely on in the Constitution that enables me to decide how much intrusiveness
is too much, rather than leaving that to Congress?
Stormer: --It would flow from the ordered concept of the liberty component of the
Fifth Amendment, as well as the First--
Scalia: The Fifth Amendment, okay.
Which says no person shall be deprived of what?
Stormer: --Of life -- I mean, no person shall be deprived of due process of law,
and then the last--
Scalia: Due process of law.
Stormer: --refers to the concept of, the ordered concept of liberty.
Scalia: All right.
That -- that's what I thought.
You are talking about substantive due process here.
Stormer: Well, the Whalen case, the Nixon case, and to some extent, the Reporters
Committee case refer to this concept of privacy.
And they are, in fact, vague, but they do talk about the concept of privacy as being
the right to control information about oneself.
And -- and both -- and all of the--
Scalia: I mean, I like that, but I just don't see it anywhere in the Constitution.
That's all I'm taking about.
Stormer: --Well, I -- there -- those cases, in fact, do not refer to a term called
"informational privacy".
Those terms have grown from the various cases that have flown -- flowed from the determinations
in Whalen and Nixon and, to some extent, Reporters Committee.
Sotomayor: So that right is subject to what level of scrutiny?
Is it always strict scrutiny?
And how do you square Whalen and Nixon's balancing with strict scrutiny?
Stormer: The -- the standard would be -- I think the appropriate standard was applied
by the Ninth Circuit, which is a legitimate State interest narrowly tailored
to meet that need.
In this case, there is some -- like the Von Raab case, which is not cited in our brief
but which is a Fourth Amendment case, the -- this Court used a compelling State
interest standard for a Fourth Amendment invasion.
And in that case, the Court remanded on the issue of whether or not the positions
involved classified or sensitive materials.
Breyer: So what is your view of what the liberty -- you are saying that the words
in the Constitution that protect the right that you claim was violated are the words,
"No person shall be" -- I guess --
"deprived of life, liberty, or property without due process of law. "
I guess you mean the word "liberty".
Stormer: That's correct.
Breyer: All right.
And in your words, it is liberty -- define it.
Liberty to what?
Stormer: Liberty to control information about oneself.
The liberty to--
Breyer: There is a right to liberty to control information about oneself?
Stormer: --Without governmental intrusion.
Breyer: All right.
And all information?
Some information?
Stormer: Well there--
Breyer: Liberty -- there is a liberty to control all information?
Protected from -- from what?
From the State?
The State doesn't have a right to give you any -- get any information about you?
On a driver's license?
It's -- when does it come into play?
Stormer: --It comes into play when the Government, the State, seeks to intrude
and obtain information from an individual.
The -- the--
Breyer: So the fact that the Government says -- I go and I want my driver's license,
and they say, fill out the form, we want to see how you -- if you can drive or not,
that potentially could violate the Constitution?
Stormer: --Well--
Breyer: Potentially.
It might not, because it might be justified, but each such case would have to be justified.
Is that -- is that your theory?
Stormer: --Any intrusion into private lives would have to have some--
Breyer: It says "liberty".
The liberty, you said, was liberty to control information about yourself.
Stormer: --That was the--
Breyer: So I want to know how that works.
Every time anyone in the Government asks a question about you personally,
of course, it wouldn't be unconstitutional.
But every time it would have to be a justified thing; is that -- is that your theory?
I'm just asking.
Stormer: --That -- yes, it is.
Sotomayor: So that's all information about yourself?
Stormer: Well--
Sotomayor: I think what Justice Breyer is getting to and that I'm trying to figure
out is, you've used the word "privacy".
What does privacy relate to?
Stormer: --Privacy relates, in this case, to the--
Sotomayor: No, I'm talking about -- answer his broad question, which is -- you've
defined the constitutional right to information about yourself.
Stormer: --Correct.
Sotomayor: Is that all information about yourself, including your date of birth,
your Social Security Number, your -- where you live, where you've gone to school,
who are your friends, who your references are?
Because as broadly as you have defined that, it would include all of that.
Stormer: It -- the -- the nature of what is included can be intruded upon based
upon a governmental need.
So if there is a rational basis for knowing Social Security Numbers, driver's
license, census information, that type of information, then -- then there is not an
issue.
Roberts: So this gets back to Justice Sotomayor's earlier question.
You said if there is a rational basis, so is that the test?
Stormer: The test--
Roberts: No matter what type of information?
I suppose it's harder to show a rational basis when you get into certain areas that
-- that concern you, but is it a rational basis test?
Stormer: --In this case, I think it is a legitimate State interest, narrowly
tailored to meet that interest, Your Honor.
Roberts: But in the case of a date of birth for a driver's license, you say it's
rational basis?
Stormer: Yes.
Breyer: So how do we decide?
I am a little interested, if you could spend two or three minutes elaborating
this.
A number of laws, Federal laws, I imagine the regulations fill this room, and I think
many -- maybe more, maybe several rooms.
And many of them involve asking people for information.
And the number of forms that ask people for information, I guess, about themselves,
might fill several rooms.
And I can imagine in a country of 300 million people, you would find someone objecting
to many of the questions.
And so how is the system supposed to work, in your view, where judges will decide
whether a particular question -- I'm not saying you are wrong.
I just wanted to get an idea from you as to how this legal system works, where any
question asked by the Government about a person is potentially subject to challenge
as unconstitutional.
You and I will agree that many are fine.
But you are worried about some that aren't fine.
How does it work, the system, distinguishing the ones from the other?
Stormer: Well, this Court has done much of that already in a whole history of cases:
Contraception, procreation, marriage, sexual relations, family relations.
Sotomayor: The fundamental rights issue that the Sixth Amendment identified,
are those the questions that are subject to that greater scrutiny?
Stormer: The -- the rights that go -- the questions that go to those types of -- which
could elicit that type of information.
For instance, on Form 42, if they said, tell us any adverse information you have
about this person, which includes any other matters.
This could be -- they could respond with saying,
"Well, I don't like the way he -- how many kids he has. "
"I don't like his religion. "
"I don't like his sexual practices. "
Ginsburg: But isn't that question, that kind of open-ended question, routinely
used in employment situations?
That is, the employer wants to know: Is there any adverse information about this
person?
Doesn't know which question to ask, because there's a whole -- many things that could
be relevant.
So are you suggesting that that kind of question is off-limits to the Government,
although it is routinely used in other employment sectors?
Stormer: It is not routinely used in employment sectors where there is allowed
to inquiry -- inquiry into non-employment-related--
Ginsburg: Well, it has a legend on the top.
Everything that we are asking you is meant to -- to determine suitability
for employment.
So they want to find out information relevant to suitability for employment.
Stormer: --And for security clearances.
Those are the two issues.
Kennedy: Well, I -- I have to agree with the implication of Justice Ginsburg's
remark, at least what I imply from it.
Look at the private employment sphere.
It seems to me that for a sensitive position, a bank who has people taking care of
-- its employees taking care of other people's money, or the medical profession,
that the employer could be sued and would be remiss if it did not ask this question.
Do you know anything adverse about this person whom we are going to hire for a very
sensitive position?
This is done all the time, and we do it with the -- a judge said below, with our law
clerk.
Stormer: That would be exactly my point, Your Honor.
It is in those situations where there's sensitive issues, you are allowed to inquire
based on the need.
But here, they are inquiring the snack bar worker, the -- the bus driver, the gift
shop operator, are -- are required to respond to these questions.
The GS-4 interior department clerk.
The Government's position is all of those are subject to this same type of inquiry.
Alito: I don't see what the alternative, as a practical matter, is to asking this
sort of open-ended question.
The -- the alternative would seem to be to try to compile a list of every possible
thing that the -- the person might do that would raise serious questions about suitability
for employment or would be disqualifying for employment.
And that seems to be impractical.
There's almost no limit to the sorts of things that might be relevant in that respect;
isn't that right?
Stormer: This goes to the very basic question of: Why does the Government need to know
this information for these individuals, most of whom have been there for 20 to 30 years?
The Government can't show a single instance of any of these individuals doing anything
that would require any of the type of scrutiny--
Ginsburg: Are you then saying that these people have to be grandfathered
or grandparented because they worked for 20 years--
[Laughter]
--without--
Stormer: --I am not, Your Honor.
But the Government has some burden to show that -- a need to inquire into these
privacy areas.
It needs to know if you have gone to the Betty Ford--
Ginsburg: --But you are making a -- you said that these people have worked there
for 20 years.
Are they different from the new employee?
Are you suggesting it's okay for the new employee, but not okay--
Stormer: --I am not.
Ginsburg: --for the person who is already in the job?
Stormer: I -- I am not.
The -- the difference between this case and, ultimately, what was allowed in both
Whalen and Nixon -- excuse me, particularly in Whalen -- is that there was some overarching
societal need to have this information.
Alito: Well, suppose the person who works at the -- at the gift shop, or the snack
bar -- I think that's what you mentioned -- has a big sign on his front lawn that
says,
"I hope the space shuttle blows up. "
Is that information the Government has a legitimate reason to get?
Stormer: I would agree that -- that in that instance,
"I hope the space shuttle blows up. "
would certainly implicate some First Amendment issues, but the Government should
know that information.
Alito: And now, what's the alternative to acquiring that information through an open-ended
question?
Do you have to have a specific question on the form?
Does this individual have a big sign on his front lawn that says--
[Laughter]
"-- I hope the space shuttle blows up? "
Stormer: I wouldn't think that that would be needed.
I think that--
Alito: Do you see what I am getting at?
I don't see how you are going to do this, other than by asking an open-ended
question.
Stormer: --Only if you need to know the answers.
And for the snack bar worker or the GS clerk-typist, for those types of people
who have no access to sensitive information, do not -- it can -- the definition
here is that these are noor low-risk -- they are low-risk employees, which is defined
as, if they misuse their position, they will have little or no impact on the agency
mission.
So we know that these questions are being asked of people who, if they completely
misused their position, there will be no impact.
Roberts: So -- just to -- I would like to get back to Justice Breyer's question.
So now you not only have to decide which questions -- they can challenge any question
they want and say, this isn't pertinent, but you also have to categorize which employees
are being asked that question.
This is a -- SF means "standard form", right?
Stormer: It does.
Roberts: Well, that -- you know, it's a big government, and they can't tailor every
inquiry, every form, to the individual applicant.
Stormer: It -- it can to the positions.
This -- this -- what is being done now, if they have done 70,000 inquiries,
that means -- and 128 issues arose, that means a whole host of people, over 69,000
people, have had to give up information that otherwise they would not have to give
up.
Ginsburg: Are you suggesting that this is no good for government employment?
You were dealing with a contractor here, but this form, as I understand it, has been
used for -- for many years for standard government employment.
Is it -- are they okay?
And for nonsensitive positions, are you -- are you arguing just government
contractor or are you saying even for the government employee, the person who's
hired to work at the snack bar in the Senate, let's say, the Government can't ask
these questions?
Stormer: If I understand Your Honor's question, and I apologize, I -- I think this
cannot be asked of -- these questions cannot be asked of people for whom the Government
does not have a justifiable need to know that information.
Scalia: We can handle those details.
My goodness, it's all right there in the Constitution.
And we can decide what -- what employees have to know what, and what questions
you can ask them, and how much privacy is too much privacy, right?
Stormer: Well--
Scalia: It's a piece of cake.
Stormer: --The Government is -- claims to be acting as the employer here.
In fact, it is not.
It is -- it's once or twice removed.
But assuming that the Government is the employer, there is a massive amount of waste
that is generated by this form.
Ginsburg: You are -- you are attacking these forms for all Government employment,
not just the contractors?
Stormer: I -- I don't -- it -- I think it would apply to all of those people who are
in nonsensitive positions.
This is the Government's definition, it's not our definition.
We chose the Government's definition.
And if it is a low-risk or a no-risk employee, then the Government doesn't have a need
to know.
A private employer could not--
Roberts: But you don't know -- you don't know if it's a low-risk employee until
you find out what he -- he or she is like or what the neighbor thinks.
Well, you know, he keeps practicing planting bombs or something.
I mean, then he becomes a high-risk employee.
You don't know until you get the information.
That's the reason you ask for it.
Stormer: --In the context of these employees for this particular case, we absolutely
know, because the Government went through and of the 7,500 employees there, it categorized
97 percent as low or no-risk employees.
So, we know in this context where they are already employed and it's just a badging
procedure.
What the Government did here--
Scalia: Excuse me.
I thought -- I thought that your friend said that the badge enables you to get within
10 feet of the shuttle?
Stormer: --I don't know that for a fact.
I do know that--
Scalia: Well, do you contradict that?
And if it's so, how can you say that these people are low-risk employees?
Stormer: --Because the Government says they are low or no-risk employees.
This is a campus atmosphere.
I have been there.
I have seen it.
If you want -- if I want to go on, I just call up Dr. Nelson and say, can you get
me on?
If I'm on there, and my car breaks down and I call up and say can the AAA auto come
on, I just call the gate and the AAA auto person, they say, yeah, just let him in?
The -- the people who have -- bring supplies on they just come on.
This is a campus where they don't have--
Scalia: Does al-Qaeda know all this stuff?
Stormer: --I'm sorry.
Scalia: Does al-Qaeda know this?
[Laughter]
Stormer: Well, the interesting response to that, Your Honor, is that it wouldn't
matter if they knew this, because it's open transparent science by a civilian
agency in a campus atmosphere.
This is not a -- weapons, national security--
Roberts: What you are saying -- what you are saying is it may not make much sense
to have the people here fill out Standard Form 85, but the Government can't tailor
its open -- opening security form to people that -- you know, maybe down the road
at a different NASA laboratory, they do work on more sensitive information.
It's a standard form.
The Government has to do things in a standard way.
Stormer: --And the Government has a form for those people who work in classified
information.
That's SF-85P, SF-85S and SF-86.
The Government can standardize and when it acts as the employer, it has an obligation,
because it can't take both it's ability and authority as the Government and -- and
overreach into the private lives of its citizens.
The questions that are being asked here would not be allowed for private employers--
Ginsburg: I'm -- I'm very surprised to hear that.
I thought that -- that if there were in -- in the private sector similar questions?
Stormer: --Similar but not questions that would go -- you couldn't, as a private
employer, say you have to turn over your medical records, you have to turn over--
Ginsburg: Where does it say you have to turn over your medical records?
Stormer: --That's in SF -- SF-85 page 6, which is the release.
And all of this has to be inquired into--
Roberts: Under what -- under what law could you -- a private employer not ask for
those records?
Stormer: --In the State of California in the right to privacy.
Roberts: I know we are talking about under general federal law.
Stormer: Most -- general federal law, I cannot answer that.
Roberts: But it's a matter of statutory law?
Stormer: Yes -- well, in some States there's a -- where there's a privacy right.
Kennedy: Question 42, do you have -- pardon me, question 7 on Form 42, the -- the
standard one, do you have any adverse information about this person's employment,
residence or activities concerning, and so forth, violation of the law?
Are you saying that private employers cannot ask that question?
Stormer: They can't ask the question--
Kennedy: The prospective private employer?
Stormer: --in the context of the release which is SF-85 page 6, which requires
that you release your private records, extensive records, residential, retail businesses,
where you shop, your educational, your--
Kennedy: I -- I'm asking whether or not a private employer can ask third persons
the question that's at Form 42 question 7.
I thought your representation to me was that private employers cannot ask that question?
Stormer: --I -- I -- if I said that, Your Honor, I misspoke.
The question goes--
Kennedy: But that was enjoined by the court below, was it not?
Stormer: --It was.
Kennedy: All right.
Stormer: Question 7 talks about financial integrity, mental and emotional stability,
general -- general behavior or conduct or other matters.
If a private employer, in many States, goes into non-employment-related
issues, it's -- it's contrary to--
Breyer: What is your view on that question?
There is a famous, funny example that supposedly may be untrue.
Senator Hruska used to ask and say in giving a reference he would write about someone,
you'll be lucky if you can get Smith to work for you.
That's the kind of thing that you might want to know.
And despite the ambiguity there and it seemed to me that question 7 sort of drove
at that.
And so, but they did enjoin it, so in your view, is that aspect of the injunction
wrong.
Stormer: --No.
Breyer: All right then.
Well, then, if it's right, why is it right?
Because it seems to me the basic thing any employer would want to know is whether
I'm lucky to get this person to work for me, that kind of thing.
Stormer: Any employer can ask issues that are employment related and based upon the
nature of the job.
You can ask those questions, but any employer can't require as a condition of employment
that you sign a release that gives them all manner of information as to where you
shop, how you shop--
Breyer: What is the specific thing about question 7 that you think is unlawful
or should be changed?
What words do you object to in that question?
Stormer: --Well, other matters, general behavior or conduct, certainly.
Breyer: So they cannot ask, do you have any information about this person's employment,
residence, or activities concerning general behavior or conduct or other matters?
Now, I am an employer and I would like to find out if he's going to do a good job.
So what am I supposed to say, there doesn't seem to be a place here other than that
to get into that question.
Stormer: That's because this question for the types of situations is not needed.
The question that is needed is, what are the characteristics that you feel he has
for this job.
Breyer: I see, I see.
Scalia: Why do you say a private employer could not ask a question of such detail?
Stormer: Primarily because of the release.
That's the sixth stage of Standard Form 85.
That release just allows--
Scalia: Why could a private employer not do it?
Stormer: --Because in virtually every state there are laws requiring the disclosure
of private information.
Scalia: Well, you mean that legislatures take care of these matters?
I find it curious that in order to establish a Federal Constitutional right, which
turns this area over to this Court, you invoke laws that have been democratically
enacted by State legislatures.
If indeed that's the criterion, maybe you don't need us.
Stormer: I -- the reason I invoke that is because the Government has stated that
any private attorney can ask these questions, and that's a misstatement of the law
in most states.
Alito: Can I ask you this question about the question on drug treatment.
Would it be unconstitutional for the Government to take the position that to require
an employee or applicant for employment to disclose whether this individual
had violated Federal or State drug laws, and take the position that if the person
gave an affirmative answer that was disqualifying, would that be unconstitutional?
Stormer: If they've said I violated State or Federal laws, not on its face so long
as if it said voluntarily, you may show mitigation that -- that would show that this
is not a problem, it would make you unfit for the job.
Alito: So they could say, have you bought, sold, used drugs in violation of Federal
or State law?
If so, you are disqualified.
Unless you can show that you have had treatment, and then it's up to you to disclose
whether or not you had treatment.
Stormer: That's correct.
Alito: What's really the difference between that regime and what you have here?
Stormer: The difference is here is because it is compelled.
It's a compelled disclosure and not offering you the opportunity to make a showing.
And in this concept the appeal right that you have from this is not a robust appeal
right that was described.
It's a very limited appeal that is internal to the department, that does not have
a right to confront or cross examine.
Ginsburg: Can I ask you to clarify your understanding of what has been enjoined?
We know Form 85, but Form 42, you mentioned the releases.
I thought that the Ninth Circuit's order covers lots of question 7 and perhaps
question 8, I didn't see, is there something, maybe I missed it, that says they can
ask for release of the records?
Stormer: There was in the emergency order specific reference to the release.
There was not in the final order, but the question can't -- has to be read in the
context of the release, because that's how they get to -- if you go to the Betty
Ford Clinic.
Ginsburg: They didn't say, Government, you can't ask for the release?
Stormer: They did not.
Ginsburg: They say you can't ask open-ended questions?
Stormer: That's correct.
They did not say that.
But it has to be implicit in their ruling because in many of the case--
Ginsburg: If somebody is going to be enjoined, I mean, it can't be implicit in the
ruling if you were enjoined.
Because it has been stayed you don't have a formal order, but you can't say, well,
it is implicit in the how many page opinion.
Stormer: --The -- well, in the Court below, for instance, the argument that the Government
made was that they needed to have the medical records, not that they just needed
this information, that they needed to have the medical records.
The question that logically flows is what can they do with this information
once they learn that you had counseling?
Then I guess they can ask you who the counsellor was, what you told the counsellor.
What was the purpose of--
Ginsburg: As I understand this process, this is not an oral interview.
You fill out a form, you meet somebody and they ask follow-up questions.
This is -- this handles on the papers, right?
Stormer: --It's handled.
First you reveal the information and then there are 22 approvers at JPL, civilians
who are not employed by NASA.
They review it and then it goes to NASA and then there is a whole series--
Ginsburg: Yes.
But is there an oral interview in this process?
Stormer: --There is not.
Ginsburg: So then they wouldn't say -- it says here, so I'm going to ask this, that
and the other thing.
It's a written--
Stormer: I may have misspoken.
It doesn't preclude an oral interview.
I am not aware of oral interviews having been made or taken.
Kennedy: You say there are 22 people in JPL that are involved in the employment?
Stormer: There are 22, the Government has approved 22 so-called approvers who are
at JPL who look over -- who are eligible to look over these forms and the responses
to the forms.
Roberts: What do you understand the scope of the preliminary injunction to be?
Does it bar the solicitation of this information throughout the Ninth Circuit
or only with respect to JPL?
Stormer: At this point it only applies to -- well -- this is not before the -- part
of the record, but when it went back to the district court, the district court and
all parties agreed that it would only apply -- that HSPD-12 would be limited to these
28 individuals, that investigation.
Thank you.
Roberts: Thank you, counsel.
General Katyal, you have four minutes.
Katyal: Justice Ginsburg, you had asked earlier whether this was narrow decision
on just a couple of questions and I think that the argument that you just heard
from my friend illustrates that it is not.
He asks for a "free standing right to control".
Ginsburg: Whatever he asks, we were reviewing a judgment.
Katyal: And the judgment--
Ginsburg: And the judgment is not the universe, it's certain questions can be.
Katyal: --And the judgment is based on the following rationale, this is from the petition
appendix on page 18A from the Ninth Circuit.
"If the Government's actions compel disclosure of private information, 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.
"
Now, that reasoning was used to invalidate a question, as Justice Kennedy said on Form
42, that employers ask all the time, banks ask it and the like.
And it's a -- it's used to invalidate parts of a standard form that the Government
uses day in and day out and that employers generally use in order to make employment
decisions.
Sotomayor: Are you conceding you can't meet that standard or are you saying that
the Ninth Circuit misapplied that standard?
Katyal: No, we are not conceding that at all.
I do think we would meet the standard, but our point is it's the same point as in Engquist,
in the Chief Justices's opinion in Engquist v. Oregon.
Forcing the Government to have to march into court every time to justify a question
here or an employee there or soup clerk here or whatever, all of those different
inquiries pose practical burdens on the ability of the Government to operate.
And so--
Sotomayor: Do you think there is something wrong with the Government having to explain
why it seeks information?
I mean, I would think that would be fairly simple in virtually every situation.
I ask that question because that begs the question of can you ask anything you want
regardless of why?
Katyal: --I think that political process ensures that the Government generally
has to answer that question at large, but in order for the Ninth Circuit's reasoning
to apply it would permit any individual person here or there to ask the question.
Ginsburg: I don't see how that's so because at least if you are in the Ninth Circuit,
you know that the Ninth Circuit has blessed all the questions on that form but one.
Katyal: That's only because--
Ginsburg: You could raise the question, but you would be out of court in a minute.
Katyal: --Justice Ginsburg, I think that's only because the Petitioners here only
challenged certain questions.
I could imagine other Petitioners challenging other questions.
Ginsburg: I thought they did in the lower court, but abandoned it here challenging
the question about the drug use?
Katyal: The drug use piece, but I could imagine all sorts of inquires about other
aspects of the form and indeed the rationale, the language that I just read to you
is a road map for anyone to be able to come in and say, well, this question isn't
necessary for me because I got a background clearance before and I'm rehired or whatever.
And it would be a huge practical burden in the same way as recognizing the cause
of action in Engquist was a practical burden.
Instead we think what the Court should do here is what it did in Whalen, which is recognize
governments collect information all the time.
Alito: How much of the information that's at issue here can be released and to whom?
Katyal: The information which can be collected that is released here is governed
by the Privacy Act.
And so there are, the appendix to our brief lists out precisely to who they could
be released to, and that has been around since 1975.
We have seen virtually no complaints about the Government disclosing this type of background
information on SF-85.
Ginsburg: Is that also within the Government itself?
I know the Privacy Act is the Government can't disclose, but how about checks and
when you have a back Government or checks about circulating the information
within the Government?
Katyal: If it is for, if it is to further the Government purpose for which the information
is collected it can be distributed to other folks in the Government.
There are restrictions on that and they are specified in the Privacy Act and they
are quite extensive.
To the extent that the Court is concerned that there is something that isn't robust
enough in the Privacy Act, we suggest that can wait for an as-applied challenge
down the road when information is disclosed.
We don't think it will, but if heaven forbid that happens, that's a basis for the
as-applied challenge down the road.
But here what they are asking you to do is invalidate questions and forms that the
Government asks all of it's employees and now just wants to ask contractors.
Thank you.
Roberts: Thank you, General.
The case is submitted.
