                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ROBERT M. NELSON; WILLIAM               
BRUCE BRANERDT; 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.
FOSTER; MATTHEW P. GOLOMBEK;
VAROUJAN GORJIAN; ZAREH
GORJIAN; ROBERT J. HAW; JAMES
KULLECK; SHARLON L. LAUBACH;
CHRISTIAN A. LINDENSMITH;
                                              No. 07-56424
AMANDA MAINZER; SCOTT
MAXWELL; TIMOTHY P. MCELRATH;
SUSAN PARADISE; KONSTANTIN
                                               D.C. No.
                                            CV-07-05669-ODW
PENANEN; CELESTE M. SATTER;                     OPINION
PETER M. B. SHAMES; AMY SNYDER
HALE; WILLIAM JOHN WALKER;
PAUL R. WEISSMAN,
               Plaintiffs-Appellants,
                 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;
                                        



                              625
626                     NELSON v. NASA


CARLOS M. GUTIERREZ, Secretary          
of Commerce, in his official
capacity only; CALIFORNIA               
INSTITUTE OF TECHNOLOGY,
             Defendants-Appellees.
                                        
        Appeal from the United States District Court
           for the Central District of California
         Otis D. Wright, District Judge, Presiding

                 Argued and Submitted
          December 5, 2007—Pasadena, California

                    Filed January 11, 2008

  Before: David R. Thompson and Kim McLane Wardlaw,
  Circuit Judges, and Edward C. Reed, Jr.,* District Judge.

                  Opinion by Judge Wardlaw




  *The Honorable Edward C. Reed, Jr., Senior United States District
Judge for the District of Nevada, sitting by designation.
630                    NELSON v. NASA
                         COUNSEL

Dan Stormer and Virginia Keeny, Law Offices of Hadsell &
Stormer, Inc., Pasadena, California, for the plaintiffs-
appellants.

Mark B. Stern and Dana Martin, U.S. Department of Justice,
Appellate Staff Civil Division, Washington, D.C., and Mark
Holscher, R. Alexander Pilmer, and Mark T. Cramer, Kirk-
land & Ellis LLP, Los Angeles, California, for the defendants-
appellees.


                         OPINION

WARDLAW, Circuit Judge:

   The named appellants in this action (“Appellants”) are sci-
entists, engineers, and administrative support personnel at the
Jet Propulsion Laboratory (“JPL”), a research laboratory run
jointly by the National Aeronautics and Space Administration
(“NASA”) and the California Institute of Technology
(“Caltech”). Appellants sued NASA, Caltech, and the Depart-
ment of Commerce (collectively “Appellees”), challenging
NASA’s recently adopted requirement that “low risk” con-
tract employees like themselves submit to in-depth back-
ground investigations. The district court denied Appellants’
request for a preliminary injunction, finding they were
unlikely to succeed on the merits and unable to demonstrate
irreparable harm. Because Appellants raise serious legal and
constitutional questions and because the balance of hardships
tips sharply in their favor, we reverse and remand.

                               I

  JPL is located on federally owned land, but operated
entirely by Caltech pursuant to a contract with NASA. Like
                          NELSON v. NASA                           631
all JPL personnel, Appellants are employed by Caltech, not
the government. Appellants are designated by the government
as “low risk” contract employees. They do not work with
classified material.

   Appellants contest NASA’s newly instated procedures
requiring “low risk” JPL personnel to yield to broad back-
ground investigations as a condition of retaining access to
JPL’s facilities. NASA’s new policy requires that every JPL
employee undergo a National Agency Check with Inquiries
(NACI), the same background investigation required of gov-
ernment civil service employees, before he or she can obtain
an identification badge needed for access to JPL’s facilities.
The NACI investigation requires the applicant to complete
and submit Standard Form 85 (SF 85), which asks for
(1) background information, including residential, educa-
tional, employment, and military histories, (2) the names of
three references that “know you well,” and (3) disclosure of
any illegal drug use within the past year, along with any treat-
ment or counseling received for such use. This information is
then checked against four government databases: (1) Security/
Suitability Investigations Index; (2) the Defense Clearance
and Investigation Index; (3) the FBI Name Check; and (4) the
FBI National Criminal History Fingerprint Check. Finally, SF
85 requires the applicant to sign an “Authorization for
Release of Information” that authorizes the government to
collect “any information relating to [his or her] activities from
schools, residential management agents, employers, criminal
justice agencies, retail business establishments, or other
sources of information.” The information sought “may
include, but is not limited to, [the applicant’s] academic, resi-
dential, achievement, performance, attendance, disciplinary,
employment history, and criminal history record information.”1
The record is vague as to the exact extent to and manner in
  1
    The form also notes that “for some information, a separate specific
release will be needed,” but does not explain what types of information
will require a separate release.
632                          NELSON v. NASA
which the government will seek this information, but it is
undisputed that each of the applicants’ references, employers,
and landlords will be sent an “Investigative Request for Per-
sonal Information” (Form 42), which asks whether the recipi-
ent has “any reason to question [the applicant’s] honesty or
trustworthiness” or has “any adverse information about [the
applicant’s] employment, residence, or activities” concerning
“violations of law,” “financial integrity,” “abuse of alcohol
and/or drugs,” “mental or emotional stability,” “general
behavior or conduct,” or “other matters.” The recipient is
asked to explain any adverse information noted on the form.
Once the information has been collected, NASA and the fed-
eral Office of Personnel Management determine whether the
employee is “suitable” for continued access to NASA’s facili-
ties, though the exact mechanics of this suitability determina-
tion are in dispute.2

   Since it was first created in 1958, NASA, like all other fed-
eral agencies, has conducted NACI investigations of its civil
servant employees but not of its contract employees. Around
the year 2000, however, NASA “determined that the incom-
plete screening of contractor employees posed a security vul-
nerability for the agency” and began to consider requiring
NACI investigations for contract employees as well. In
  2
    Appellants claim that the factors used in the suitability determination
were set forth in a document, temporarily posted on JPL’s internal web-
site, labeled the “Issue Characterization Chart.” The document identifies
within categories designated “A” through “D” “[i]nfrequent, irregular, but
deliberate delinquency in meeting financial obligations,” “[p]attern of irre-
sponsibility as reflected in . . . credit history,” “carnal knowledge,” “sod-
omy,” “incest,” “abusive language,” “unlawful assembly,” “attitude,”
“homosexuality . . . when indications are present of possible susceptibility
to coercion or blackmail,” “physical health issues,” “mental, emotional,
psychological, or psychiatric issues,” “issues . . . that relate to an associate
of the person under investigation,” and “issues . . . that relate to a relative
of the person under investigation.” NASA neither concedes nor denies that
these factors are considered as part of its suitability analysis; instead, it
suggests that Appellants have not sufficiently proved that such factors will
play a role in any individual case.
                       NELSON v. NASA                      633
November 2005, revisions to NASA’s Security Program Pro-
cedural Requirements imposed the same baseline NACI
investigation for all employees, civil servant or contractor.
These changes were not made applicable to JPL employees
until January 29, 2007, when NASA modified its contract
with Caltech to include the requirement. Caltech vigorously
opposed the change, but NASA invoked its contractual right
to unilaterally modify the contract and directed Caltech to
comply immediately with the modifications. Caltech subse-
quently adopted a policy—not required by NASA—that all
JPL employees who did not successfully complete the NACI
process so as to receive a federal identification badge would
be deemed to have voluntarily resigned their Caltech employ-
ment.

   On August 30, 2007, Appellants filed suit alleging, both
individually and on behalf of the class of JPL employees in
non-sensitive or “low risk” positions, that NASA’s newly
imposed background investigations are unlawful. Appellants
bring three primary claims: (1) NASA and the Department of
Commerce (collectively “Federal Appellees”) violated the
Administrative Procedure Act (“APA”) by acting without
statutory authority in imposing the investigations on contract
employees; (2) the investigations violate their constitutional
right to informational privacy; and (3) the investigations con-
stitute unreasonable searches prohibited by the Fourth
Amendment.

   On September 24, 2007, Appellants moved for a prelimi-
nary injunction against the new policy on the basis that any
JPL worker who failed to submit an SF 85 questionnaire by
October 5, 2007 would be summarily terminated. The district
court denied Appellants’ request. It divided Appellants’
claims into two categories—those challenging the SF 85 ques-
tionnaire itself and those challenging the grounds upon which
an employee might be deemed unsuitable—and found that the
challenges to the suitability determination were highly specu-
lative and unripe for judicial review. The court rejected
634                    NELSON v. NASA
Appellants’ APA claim, finding statutory support for the
investigations in the National Aeronautics and Space Act of
1958 (the “Space Act”), which allows NASA to establish
security requirements as deemed “necessary in the interest of
the national security.” 42 U.S.C. § 2455(a). Limiting its
review to the SF 85 questionnaire, the court found the form
implicated the constitutional right to informational privacy
but was narrowly tailored to further the government’s legiti-
mate security interest. Finally, the court rejected Appellants’
Fourth Amendment argument, holding that a background
investigation was not a “search” within the meaning of the
Fourth Amendment. After concluding that Appellants had lit-
tle chance of success on the merits, the district court also
found that they could not demonstrate irreparable injury,
because any unlawful denial of access from JPL could be
remedied post hoc through compensatory relief.

   On appeal, a motions panel of our court granted a tempo-
rary injunction pending a merits determination of the denial
of the preliminary injunction. Nelson v. NASA, 506 F.3d 713
(9th Cir. 2007). The panel concluded that the information
sought by SF 85 and its waiver requirement raised serious pri-
vacy issues and questioned whether it was narrowly tailored
to meet the government’s legitimate interest in ascertaining
the identity of its low-risk employees. Id. at 716. The panel
further found that “[t]he balance of hardships tips sharply in
favor of [A]ppellants,” who risk losing their jobs pending
appeal, whereas there was no exigent reason for performing
the NACI investigations during the few months pending
appeal given that “it has been more than three years since the
Presidential Directive [upon which the government relies]
was issued.” Id. at 716.

                              II

  To obtain preliminary injunctive relief, Appellants must
demonstrate either “(1) a likelihood of success on the merits
and the possibility of irreparable injury; or (2) that serious
                        NELSON v. NASA                        635
questions going to the merits were raised and the balance of
hardships tips sharply in its favor.” Walczak v. EPL Prolong,
Inc., 198 F.3d 725, 731 (9th Cir. 1999). The two prongs are
not separate tests but rather “extremes of a single continuum,”
so “the greater the relative hardship to [the party seeking the
preliminary injunction], the less probability of success must
be shown.” Id. (internal quotation marks omitted).

   Upon review of the merits of the district court’s denial of
preliminary injunctive relief, we find ourselves in agreement
with the motions panel. Appellants 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. We therefore conclude that the district
court abused its discretion in denying Appellants’ motion for
a preliminary injunction, and we reverse and remand.

A.   Standing and Ripeness

   The district court found that the justiciability doctrines of
ripeness and standing precluded consideration of Appellants’
claims, except as they concerned the SF 85 questionnaire and
associated waiver. We agree with the district court that Appel-
lants’ claims concerning the suitability determination are
unripe and unfit for judicial review; however, the district
court misconstrued Appellants’ informational privacy claim,
viewing it as limited to the SF 85 questionnaire alone.

   [1] To enforce Article III’s limitation of federal jurisdiction
to “cases and controversies,” plaintiffs must demonstrate both
standing and ripeness. To demonstrate standing, a plaintiff
“must have suffered an ‘injury in fact’—an invasion of a
legally protected interest which is (a) concrete and particular-
ized, . . . and (b) actual or imminent, not conjectural or hypo-
thetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992) (internal citations and quotation marks omitted). The
ripeness doctrine similarly serves “to prevent the courts,
through avoidance of premature adjudication, from entangling
636                    NELSON v. NASA
themselves in abstract disagreements over administrative poli-
cies” and requires assessing “ ‘both the fitness of the issues
for judicial decision and the hardship to the parties of with-
holding court consideration.’ ” Ass’n of Am. Med. Colls. v.
United States, 217 F.3d 770, 779-80 (9th Cir. 2000) (quoting
Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)).

   [2] In analyzing justiciability, the district court distilled
Appellants’ claims into two basic arguments: (1) “that SF 85
is overly broad and intrusive considering the ‘low-risk’ nature
of [appellants’] jobs at JPL” and (2) “that JPL’s internal pol-
icy, which lists various grounds upon which an employee can
be determined unsuitable for employment, is unconstitution-
al.” We agree that challenges to the suitability determination
are unripe because the record does not sufficiently establish
how the government intends to determine “suitability”—
accordingly, any claims are “strictly speculative.” We also
agree that Appellants have standing to challenge the SF 85
questionnaire, and because “it is undisputed that if [Appel-
lants] do not sign the SF 85 waiver by October 5, 2007,” they
will “be deemed to have voluntarily resigned,” there exists a
“concrete injury that is imminent and not hypothetical” and
thus ripe for review.

   [3] However, the district court overlooked Appellants’
challenges to the government investigation that will result
from the SF 85 requirement that the applicant sign an “autho-
rization for release of information.” On its face, this waiver
authorizes the government to collect “any information . . .
from schools, residential management agents, employers,
criminal justice agencies, retail business establishments, or
other sources of information” “includ[ing], but . . . not limited
to, . . . academic, residential, performance, attendance, disci-
plinary, employment history, and criminal history record
information.” It is uncontested that as a result of this authori-
zation, the government Office of Personnel Management will
send out “Investigative Request[s] for Personal Information,”
Form 42, to references, employers, and landlords. This form
                       NELSON v. NASA                       637
seeks highly personal information using an open-ended ques-
tioning technique, including asking for “any adverse informa-
tion” at all or any “additional information which . . . may have
a bearing on this person’s suitability for government employ-
ment.” Any harm that results from Form 42’s dissemination
and the information consequently provided to the government
will be concrete and immediate.

   [4] Because Federal Appellees freely admit that Form 42
will be used in NASA’s background investigations, Appel-
lants have standing to challenge Form 42’s distribution and
solicitation of private information, and the issues raised in
these challenges are ripe for review. The district court erred
by excluding Form 42 claims from its analysis of Appellants’
likelihood of success on the merits.

B.   APA Claims

   Appellants argue that Federal Appellees violated the APA
by imposing background investigations on contract employees
without any basis in executive order or statute. In response,
Federal Appellees find authorization for their program in
three statutory and regulatory sources: The Homeland Secur-
ity Presidential Directive 12 (“HSPD 12”), the Federal Infor-
mation Security Management Act (“FISMA”), and the Space
Act.

   [5] Both HSPD 12 and FISMA fail on their face to autho-
rize the broad background investigations NASA has imposed
on JPL personnel. HSPD 12 creates a Federal policy of “es-
tablishing a mandatory Government-wide standard for secure
and reliable forms of identification issued by the Federal Gov-
ernment to its employees and contractors (including contrac-
tor employees).” However, many of the questions in SF 85
and Form 42 seek much more information than that which
would securely and reliably identify the employees. Nelson,
506 F.3d at 716. Similarly, FISMA gives the Secretary of
Commerce authority to “prescribe standards and guidelines
638                      NELSON v. NASA
pertaining to Federal information systems,” 40 U.S.C.
§ 11331(a)(1) (2002), but NASA’s 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 sys-
tems, and therefore cannot be entirely justified, if at all, by
FISMA. That neither HSPD 12 nor FISMA authorize
NASA’s actions is reinforced by Federal Appellees’ own dec-
larations that “the decision to require at a minimum a NACI
for NASA contractor employees dates back to the 2000 to
2001 timeframe,” well before either FISMA was passed in
2002 or HSPD 12 was issued in 2004.

  [6] The Space Act, at first glance, appears more promising;
however, it too fails to justify requiring these open-ended
investigations of “low-risk” contract employees. The Space
Act authorizes the NASA Administrator to “establish such
security requirements, restrictions, and safeguards as he
deems necessary in the interest of the national security.” 42
U.S.C. § 2455(a) (1958). The district court found that this lan-
guage “clearly gives NASA the authority to implement back-
ground investigations as part of the security screening of
contractors;” however, it ignored the statute’s limiting lan-
guage that the security programs established be “deem[ed]
necessary in the interest of the national security.” This phrase
must be read in light of Cole v. Young, 351 U.S. 536 (1956),
decided just two years before the Space Act was passed. In
Cole, the Supreme Court considered a statute that gave certain
government officials the power to summarily dismiss employ-
ees “when deemed necessary in the interest of the national
security.” Id. at 538 (internal quotation marks omitted). The
Court noted:

      While that term is not defined in the Act, we think
      it clear from the statute as a whole that that term was
      intended to comprehend only those activities of the
      Government that are directly concerned with the pro-
      tections of the Nation from internal subversion or
                       NELSON v. NASA                        639
     foreign aggression, and not those which contribute to
     the strength of the Nation only through their impact
     on the general welfare.

Id. at 544. The Court found it clear “that ‘national security’
was not used in the Act in an all-inclusive sense, but was
intended to refer only to the protection of ‘sensitive’ activi-
ties. It follows that an employee can be dismissed ‘in the
interest of the national security’ under the Act only if he occu-
pies a ‘sensitive’ position . . . .” Id. at 551. We agree with
Appellants that the use of identical limiting language in the
Space Act so soon after Cole was decided strongly suggests
that Congress expected the term “national security” to be sim-
ilarly construed in this context. Therefore, the Space Act’s
authorization to establish “security requirements, restrictions,
and safeguards” applies to “only those activities of the Gov-
ernment that are directly concerned with the protections of the
Nation from internal subversion or foreign aggression,” id. at
544, and background investigations can be deemed “in the
interest of the national security” “only if [the target of the
investigation] occupies a ‘sensitive’ position,” id. at 551.
Here, it is undisputed that the Appellants do not occupy “sen-
sitive” positions; they are low-risk employees. Because the
district court’s reading of the Space Act failed to account for
the Supreme Court’s holding in Cole, its conclusion as to
Appellants’ likelihood of success as to their APA claim was
erroneous.

C.   Informational Privacy Claims

   [7] The district court similarly underestimated the likeli-
hood that Appellants would succeed on their informational
privacy claim. We have repeatedly acknowledged that the
Constitution protects an “individual interest in avoiding dis-
closure of personal matters.” In re Crawford, 194 F.3d 954,
958 (9th Cir. 1999). This interest covers a wide range of per-
sonal matters, including sexual activity, Thorne v. City of El
Segundo, 726 F.2d 459 (9th Cir. 1983) (holding that question-
640                    NELSON v. NASA
ing police applicant about her prior sexual activity violated
her right to informational privacy), medical information,
Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d
1260, 1269 (9th Cir. 1998) (“The constitutionally protected
privacy interest in avoiding disclosure of personal matters
clearly encompasses medical information and its confidential-
ity”), and financial matters, Crawford, 194 F.3d at 958 (agree-
ing that public disclosure of social security numbers may
implicate the right to informational privacy in “an era of ram-
pant identity theft”). If the government’s actions compel dis-
closure of private information, it “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.” Crawford, 194 F.3d at 959 (internal
quotation marks omitted).

   [8] The district court correctly concluded that the requested
information in this case is sufficiently private to implicate the
right to informational privacy. SF 85 requires the applicant to
disclose any illegal drug use within the past year, along with
any treatment or counseling received. The Supreme Court has
made clear, in the Fourth Amendment context, that individu-
als’ reasonable expectations of privacy in their medical his-
tory includes information about drug use, Skinner v. R.R.
Labor Executives’ Ass’n, 489 U.S. 602, 617 (1989), and, by
analogy, drug treatment or counseling. Moreover, Form 42
inquiries distributed as part of the NACI—omitted from the
district court’s analysis as a result of its erroneous ripeness
holding—are even more probing. Form 42 solicits “any
adverse information” concerning “financial integrity,” “abuse
of alcohol and/or drugs,” “mental or emotional stability,” and
“other matters.” These open-ended questions are designed to
elicit a wide range of adverse, private information that “is not
generally disclosed by individuals to the public,” Crawford,
194 F.3d at 958; accordingly, they must be deemed to impli-
cate the right to informational privacy.

   [9] Considering the breadth of Form 42’s questions, it is
difficult to see how they could be narrowly tailored to meet
                       NELSON v. NASA                        641
any legitimate need, much less the specific interests that Fed-
eral Appellees have offered to justify the new requirement.
Asking for “any adverse information about this person’s
employment, residence, or activities” may solicit some infor-
mation relevant to “identity,” “national security,” or “protect-
ing federal information systems,” but there are absolutely no
safeguards in place to limit the disclosures to information rel-
evant to these interests. Instead, the form invites the recipient
to reveal any negative information of which he or she is
aware. There is nothing “narrowly tailored” about such a
broad inquisition.

   [10] Finally, the context in which the written inquiries are
posed further supports Appellants’ claim. In Thorne v. City of
El Segundo, 726 F.2d 459 (9th Cir. 1983), we focused not
only on the private nature of questions asked, but also on the
lack of standards governing the inquiry. We held that ques-
tioning a female police applicant about her past sexual rela-
tions with another officer in the department violated her
constitutional right to informational privacy, id. at 468, find-
ing that many of the questions posed went beyond any rele-
vant lines of questioning, id. at 469-70. More importantly, we
noted that the city had not set any standards for inquiring
about the private information. Id. at 470. “When the state’s
questions directly intrude on the core of a person’s constitu-
tionally protected privacy and associational interests . . . , an
unbounded, standardless inquiry, even if founded upon a
legitimate state interest, cannot withstand the heightened scru-
tiny with which we must view the state’s action.” Id. In this
case, the government’s questions stem from SF 85’s
extremely broad authorization, allowing it “to obtain any
information” from any source, subject to other releases being
necessary only in some vague and unspecified contexts. Fed-
eral Appellees have steadfastly refused to provide any stan-
dards narrowly tailoring the investigations to the legitimate
interests they offer. Given that Form 42’s open-ended and
highly private questions are authorized by this broad, stan-
dardless waiver and do not appear narrowly tailored to any
642                    NELSON v. NASA
legitimate government interest, the district court erred in find-
ing that Appellants were unlikely to succeed on their informa-
tional privacy claim.

D.    Fourth Amendment Claims

   We agree with the district court’s conclusion that Appel-
lants are unlikely to succeed on their Fourth Amendment
claims. The government’s actions are not likely to be deemed
“searches” within the meaning of the Fourth Amendment. An
action to uncover information is considered a “search” if the
target of the search has a “reasonable expectation of privacy”
in the information being sought, meaning a “subjective expec-
tation of privacy . . . that society is prepared to recognize as
reasonable.” United States v. Diaz-Castaneda, 494 F.3d 1146,
1151 (9th Cir. 2007) (citing Katz v. United States, 389 U.S.
347, 361 (1967) (Harlan, J., concurring)). Under our Fourth
Amendment jurisprudence, one does not have a reasonable
expectation of privacy in one’s information merely because
that information is of a “private” nature; instead, such an oth-
erwise reasonable expectation can evaporate in any of several
ways. See, e.g., United States v. Miller, 425 U.S. 435, 443
(1976) (holding that there is no reasonable expectation of pri-
vacy in bank records because the information was voluntarily
disclosed to the bank).

    [11] The Form 42 questionnaire sent to third parties cannot
be considered a “search,” because “the Fourth Amendment
does not prohibit the obtaining of information revealed to a
third party and conveyed by him to Government authorities
. . . .” Miller, 425 U.S. at 443. This principle has its roots in
Hoffa v. United States, 385 U.S. 293 (1966), and United
States v. White, 401 U.S. 745 (1971), both of which dealt with
the government’s use of confidential informants and held that
the Fourth Amendment “affords no protection to ‘a wrongdo-
er’s misplaced belief that a person to whom he voluntarily
confides his wrongdoing will not reveal it.’ ” White, 401 U.S.
at 749 (quoting Hoffa, 385 U.S. at 302). In Miller, the
                       NELSON v. NASA                       643
Supreme Court held that the Fourth Amendment did not pro-
tect subpoenaed bank records, seemingly extending the Hoffa/
White principle to cover all information knowingly disclosed
to the government by a third party. Under Miller, therefore,
written inquiries sent to third parties, no matter how private
the subject of their questioning, cannot be considered “search-
es.”

   [12] Similarly, the questions posed directly to the applicant
on the SF 85 questionnaire are also unlikely to be considered
Fourth Amendment “searches,” because that Amendment has
not generally been applied to direct questioning. Instead, his-
torically, when “the objective is to obtain testimonial rather
than physical evidence, the relevant constitutional amendment
is not the Fourth but the Fifth.” Greenawalt v. Ind. Dep’t of
Corr., 397 F.3d 587, 591 (7th Cir. 2005). As Judge Posner
notes in Greenawalt, applying the Fourth Amendment to
direct questioning would force the courts to analyze a wide
range of novel contexts (e.g., courtroom testimony, police
witness interviews, credit checks, and, as here, background
checks) under a complex doctrine, with its cumbersome war-
rant and probable cause requirements and their myriad excep-
tions, that was designed with completely different
circumstances in mind. Id. at 590-91. Moreover, declining to
extend the Fourth Amendment to direct questioning will by
no means leave individuals unprotected, as such contexts will
remain governed by traditional Fifth and Sixth Amendment
interrogation rights and the right to informational privacy
described above. See id. at 591-92.

E.   Balance of Hardships

   [13] The balance of hardships tips sharply toward Appel-
lants, who face a stark choice—either violation of their consti-
tutional rights or loss of their jobs. The district court
erroneously concluded that Appellants will not suffer any
irreparable harm because they could be retroactively compen-
sated for any temporary denial of employment. It is true that
644                    NELSON v. NASA
“monetary injury is not normally considered irreparable,” L.A.
Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d
1197, 1202 (9th Cir. 1980), and the JPL employees who
choose to give up their jobs may later be made whole finan-
cially if the policy is struck down. However, in the meantime,
there is a substantial risk that a number of employees will not
be able to finance such a principled position and so will be
coerced into submitting to the allegedly unconstitutional
NACI investigation. Unlike monetary injuries, constitutional
violations cannot be adequately remedied through damages
and therefore generally constitute irreparable harm. See Mon-
terey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997).
Morever, the loss of one’s job does not carry merely monetary
consequences; it carries emotional damages and stress, which
cannot be compensated by mere back payment of wages.

   [14] On the other side of the balance, NASA has not dem-
onstrated any specific harm that it will face if it is enjoined
for the pendency of the adjudication from applying its broad
investigatory scheme to “low risk” JPL contract employees,
many of whom have worked at the laboratory for decades. As
Caltech argues, JPL has successfully functioned without any
background investigations since the first contract between
NASA and JPL in 1958, so granting injunctive relief would
make NASA no worse off than it has ever been. Moreover, an
injunction in this case would not affect NASA’s ability to
investigate JPL personnel in “sensitive positions,” signifi-
cantly undercutting any lingering security fears. Finally, we
note that NASA has taken years to implement NACI at JPL,
a fact we construe as weakening any urgency in imposing the
investigations before Appellants’ claims are fully adjudicated
on their merits.

                              III

   Caltech separately argues that any injunctive relief should
not encompass it because, as a private actor, it cannot be held
liable for constitutional violations that arise from the
                        NELSON v. NASA                        645
government-imposed background investigations. Caltech is
correct that there exists a “presumption that private conduct
does not constitute government action.” Sutton v. Providence
St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999). This
presumption is rebutted, however, when a sufficient nexus
“make[s] it fair to attribute liability to the private entity as a
governmental actor. Typically, the nexus consists of some
willful participation in a joint activity by the private entity
and the government.” Id. at 843 (emphasis added).

   [13] Caltech notes that it initially opposed the new back-
ground investigations, which are conducted entirely by NASA
and other government agencies; therefore, it claims that the
investigations are not “joint activities” and Caltech is not a
“willful participant.” We have some sympathy for this argu-
ment, and if Caltech had done nothing more than abide by the
contract terms unilaterally imposed by NASA, we might
agree with its position. Here, however, the record is clear that
Caltech did do more—it established, on its own initiative, a
policy that JPL employees who failed to obtain federal identi-
fication badges would not simply be denied access to JPL,
they would be terminated entirely from Caltech’s employ-
ment. This decision does not necessarily render Caltech liable
as a governmental actor, but it raises serious questions as to
whether the university has in fact now become a willful and
joint participant in NASA’s investigation program, even
though it was not so initially. Caltech’s threat to terminate
non-compliant employees is central to the harm Appellants
face and creates the coercive environment in which they must
choose between their jobs or their constitutional rights. More-
over, with the government enjoined, Caltech faces no inde-
pendent harm to itself, so the balance of hardships tips
overwhelmingly in Appellants’ favor. Therefore, we hold that
preliminary injunctive relief should apply both to Caltech and
to Federal Appellees.

                               IV

   Appellants have raised serious questions as to the merits of
their informational privacy and APA claims, and the balance
646                   NELSON v. NASA
of hardships tips sharply in their favor. The district court’s
denial of the preliminary injunction was based on errors of
law and hence was an abuse of discretion. Accordingly, we
reverse and remand with instructions to fashion preliminary
injunctive relief consistent with this opinion.

  REVERSED and REMANDED.
