NATIONAL TREASURY EMP. UNION v. USD OF IRS, A-89-CA-924.
Decision Date | 31 August 1992 |
Docket Number | No. A-89-CA-924.,A-89-CA-924. |
Citation | 843 F. Supp. 214 |
Parties | NATIONAL TREASURY EMPLOYEES UNION, et al, Plaintiffs, v. UNITED STATES DEPARTMENT OF INTERNAL REVENUE SERVICE, and Office of Personnel Management, Defendants. |
Court | U.S. District Court — Western District of Texas |
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.
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: 19(b) asks: Question 19 continues, (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 The Defendants contend Question 19(b)
This Court has jurisdiction under 28 U.S.C. § 1331.
The Defendants challenge Plaintiff National Treasury Employees Union's standing to bring this cause of action. They allege it lacks standing because the injuries are speculative and the rights are personal to the employees and cannot be asserted by the union. This argument need not delay the Court long; the union has standing. See, National Federation of Federal Employees v. Greenberg, 789 F.Supp. 430, 433 (D.D.C. 1992).
The Fifth Amendment provides, in relevant part, no person shall "be compelled in any criminal case to be a witness against himself." The guarantee is commonly encountered in criminal cases; such as the requirement of Miranda warnings before questioning a suspect or when a criminal defendant chooses not to testify in his defense. In Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), the Supreme Court extended the guarantee to public employment situations.
In Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968) and its companion case Uniformed Sanitation Men Association v. Commissioner of Sanitation of the City of New York, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968), the Supreme Court, however, addressed the issue whether a public employer can terminate a public employee who refuses to waive his Fifth Amendment immunity and answer questions. In both cases, the Court held it cannot. The direct issue before the Gardner and Uniformed Sanitation Men's Court was whether a public employer can require an employee to waive his Fifth Amendment rights and answer questions. The Supreme Court addressed the issue before this Court, what type of questions can a public employer ask employees, in dicta. In both cases, the Court stated a public employer may compel an employee to "answer possibly incriminating questions specifically, directly and narrowly relating to the performance of his official duties" provided the employee is not required to waive his Fifth Amendment Rights. Gardner, ...
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National Treasury Employees Union v. U.S. Dept. of Treasury
...justification. 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 ag......
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