NATIONAL TREASURY EMP. UNION v. USD OF IRS, No. A-89-CA-924.
| Court | United States District Courts. 5th Circuit. Western District of Texas |
| Citation | 843 F. Supp. 214 |
| Docket Number | No. A-89-CA-924. |
| Parties | NATIONAL TREASURY EMPLOYEES UNION, et al, Plaintiffs, v. UNITED STATES DEPARTMENT OF INTERNAL REVENUE SERVICE, and Office of Personnel Management, Defendants. |
| Decision Date | 31 August 1992 |
843 F. Supp. 214
NATIONAL TREASURY EMPLOYEES UNION, et al, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF INTERNAL REVENUE SERVICE, and Office of Personnel Management, Defendants.
No. A-89-CA-924.
United States District Court, W.D. Texas, Austin Division.
August 31, 1992.
Anne Ellzey, Nat'l Treasury Employees Union, Austin, TX, Gregory O'Duden, National Treasury Employees Union, Director of Litigation, Kerry L. Adams, David F. Klein, Barbara A. Atkin, National Treasury Emp. Union, Washington, DC, for plaintiffs.
Roxanne McKee, U.S. Attys. Office, Austin, TX, Elise Shore, Elizabeth Pugh, Department of Justice, Civ. Div., Washington, DC, for defendants.
JUDGMENT
SPARKS, District Judge.
BE IT REMEMBERED on the 31 July, 1992, came on to be heard and considered the Plaintiffs and the Defendants' cross-motions for summary judgment. The Plaintiffs and the Defendants were represented by counsel. Having considered the motions, the responses and the arguments of counsel and reviewed the file, the Court enters the following findings and judgment:
The United States Department of Internal Revenue Service (IRS) has designated certain employees as employees occupying "public trust" positions. As "public trust" employees, they are required to undergo background checks as a condition of employment and continued employment. The "public trust" employees are required to complete Standard Form 85P (SF-85P), "Questionnaire for Public Trust Positions." The majority of SF-85P is general employment application questions. However, one question, Question 19, inquires whether the employee has "used, possessed, supplied or manufactured illegal drug in the last five years and whether the employee has experienced any "problems" due to his or her use of illegal drugs or alcohol."
Question 19, labeled ILLEGAL DRUGS AND ALCOHOL, is divided into two sections; 19(a) and 19(b). Each section asks a question regarding prior alcohol and/or illegal drug use. 19(a) asks: "In the last 5 years, have you used, possessed, supplied, or manufactured any illegal drugs? When used without a prescription, illegal drugs include marijuana, cocaine, hashish, narcotics (opium, morphine, codeine, heroin, etc.), stimulants (cocaine, amphetamines, etc.), depressants (barbiturates, methaqualone, tranquilizers, etc.), hallucinogenics (LSD, PCP, etc.). (NOTE: The information you provide in response to this question will not be provided for use in any criminal proceedings against you, unless requested by the Department of Justice in connection with an independent investigation.)" 19(b) asks: "Have you experienced problems (disciplinary action, evictions, formal complaints, etc.) on or off a job from your use of illegal drugs or alcohol? (NOTE: Answer this question only if instructed to do so by the Agency.)" Question 19 continues, "If you answered `Yes' to question a or b above, provide information relating to the types of substance(s), the nature of the activity, and any other details relating to your involvement with illegal drugs or alcohol. Include any treatment or counseling received." (emphasis in original).
If an employee refuses to answer Question 19, he is subject to disciplinary action, including termination.
Additionally, the employees are required to sign an "Authorization for Release of Information" which, among other things, authorizes the custodian of records to release this information to investigators, special agents, or other duly accredited representatives of any authorized Federal agency "regardless of any previous agreement to the contrary."
Plaintiff National Treasury Employees Union (NTEU) represents IRS employees.1 Plaintiff NTEU Chapter 247 is the local chapter of the NTEU. Plaintiff Carrie Bravo is an IRS employee and a "public trust" employee required to complete SF-85P. Plaintiffs contend Question 19 is unconstitutional in that it violates the "public trust" employees', including Plaintiff Bravo, Fifth Amendment right against self-incrimination and Constitutional right to privacy, and seek injunctive relief prohibiting the Defendants from asking this question. The Plaintiffs contend Question 19(a) violates the privilege against self-incrimination secured by the Fifth Amendment of the Constitution, and Question 19(b) violates the privilege against self-incrimination and the Constitutional right to privacy. The Plaintiffs contend the Fifth Amendment is violated because the IRS is "forcing IRS employees, under pain of losing their jobs, to reveal whether they have used, possessed, supplied, or manufactured illegal drugs, without giving them adequate recorded guarantees of criminal use immunity." The Plaintiffs contend Question 19(b) "requiring employees to disclose `problems' experienced off the job from alcohol and drug use, without effect on their performance on the job, violates employees' constitutional right to privacy by inquiring into intimate personal matters in an overbroad manner and without substantial justification."
The Defendants contend they are entitled to summary judgment because Question 19 does not violate the employees' right to privacy or the right against self-incrimination. The Defendants insist Question 19 does not violate the right against self-incrimination because the question does not compel them to "simultaneously waive their privilege against self-incrimination or suffer the penalty of job loss. Although defendant Office of Personnel Management may report to the Attorney General information related to an IRS employee's violation of the criminal drug laws obtained as a result of an employee's answer to the questions, the Attorney General is, by operation of law, prohibited from using any such information as a basis for criminal prosecution." The Defendants contend Question 19(b) "does not violate the employees' constitutional right to privacy since the nature of the information requested in this question does not implicate any aspect of personal intimacy entitled to constitutional
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National Treasury Employees Union v. U.S. Dept. of Treasury, No. 92-8597
...The district court, ruling on cross-motions for summary judgment, granted judgment for the NTEU and Bravo on August 31, 1992, 843 F.Supp. 214. The court first concluded that the union had standing to assert its claims that the government had violated its members' privilege against self-incr......
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National Treasury Employees Union v. U.S. Dept. of Treasury, No. 92-8597
...The district court, ruling on cross-motions for summary judgment, granted judgment for the NTEU and Bravo on August 31, 1992, 843 F.Supp. 214. The court first concluded that the union had standing to assert its claims that the government had violated its members' privilege against self-incr......
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US v. Ishmael, No. 9:93CR22.
...a criminal history involving violation of marijuana laws. But, there were no reports of law enforcement officers or informants who had 843 F. Supp. 214 observed any marijuana or any other illegal activity by the Ishmaels. The evidence of their activity was consistent with developing a new p......