Nelson v. NASA, 512 F.3d 1134 (9th Cir. 2008)

NASA began requiring plaintiffs (long-time, “low-risk” contract employees of the Jet Propulsion Laboratory) to undergo a National Agency Check with Inquiries (“NACI”), which includes, among other things, a request for background information, the names of three references and disclosure of any illegal drug use within the past year, along with any treatment or counseling received for such use. Plaintiffs also were asked to sign a general waiver for release of additional information. The questionnaire and wavier were adopted to implement Homeland Security Presidential Directive 12 for the purpose of obtaining “secure and reliable forms of identification.” The district court denied plaintiffs’ motion for a preliminary injunction, but the Ninth Circuit granted the injunction and prohibited NASA from obtaining the requested information because plaintiffs were scheduled to lose their jobs if they failed to provide the information NASA had requested. In this subsequent opinion on the merits, the Ninth Circuit reviewed and reversed the district court’s denial of preliminary injunctive relief and held plaintiffs have “demonstrated serious questions as to certain of their claims on which they are likely to succeed on the merits, and the balance of hardships tips sharply in their favor.” Cf. Lanier v. City of Woodburn, 518 F.3d 1147 (9th Cir. 2008) (city’s policy requiring job applicants to pass a pre-employment drug test violated the Fourth Amendment); CashCall, Inc. v. Superior Court, 159 Cal. App. 4th 273 (2008) (precertification discovery appropriate for purpose of identifying class members who may become substitute plaintiffs in place of named plaintiffs who were not members of the purported class in case involving alleged violation of privacy rights).