National Treasury Employees Union v. U.S. Dept. of Treasury

Decision Date22 June 1994
Docket NumberNo. 92-8597,92-8597
Citation25 F.3d 237
Parties146 L.R.R.M. (BNA) 2731, 63 USLW 2028, 9 IER Cases 1112 NATIONAL TREASURY EMPLOYEES UNION and Carrie L. Bravo, Plaintiffs-Appellees, v. U.S. DEPARTMENT OF THE TREASURY, U.S. Internal Revenue Service and U.S. Office of Personnel Management, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Ronald F. Ederer, U.S. Atty., Austin, TX, Jeffrey Clair, Freddie Lipstein, Leonard Schaitman, Civ. Div., Appellate Staff, U.S Dept. of Justice, Washington, DC, for appellants.

Barbara A. Atkin, Gregory O'Duden, David F. Klein, Kerry L. Adams, Natl Treasury Employees Un., Washington, DC, for appellees.

Appeal from the United States District Court for the Western District of Texas.

Before SNEED, * REYNALDO G. GARZA, and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The National Treasury Employees Union ("NTEU") and Carrie L. Bravo brought this action challenging an IRS employee questionnaire concerning personal use of drugs and alcohol as violating the Fifth Amendment protection against self-incrimination and the constitutional right to privacy. We hold that the plaintiffs do not have standing to assert either their Fifth Amendment claim or their right to privacy claim.


The plaintiffs in this case are the NTEU and Carrie L. Bravo. The NTEU is a federal sector labor union that represents over 100,000 employees of the Internal Revenue Service ("IRS"), and NTEU Chapter 247 brought this action as the representative of certain IRS employees in Austin, Texas. Carrie L. Bravo is a tax examining assistant at the IRS Austin Compliance Center. The plaintiffs complain that the U.S. Department of Treasury ("Treasury") and the IRS have taken actions to force certain employees who work for the IRS to respond to a comprehensive government-wide questionnaire known as the SF-85P. The plaintiffs claim that the questionnaire violates the employees' Fifth Amendment protection against self-incrimination and the employees' constitutional privacy right.

Defendant Office of Personnel Management ("OPM") has established criteria and procedures for determining the "suitability" of employees in the federal civil service. It has determined that certain positions have moderate or high potential for adverse impact to the efficiency of the service, and it has denominated those positions as "public trust" positions. Incumbents and applicants for employment in such positions are required to complete a comprehensive government-wide questionnaire known as the SF-85P. The questionnaire is used in background investigations and periodic reinvestigations of employees to determine their fitness for selection or retention in their jobs.

Various positions in IRS district offices, customer service centers and compliance centers have been designated "public trust" positions. Representative positions include taxpayer service specialist, tax auditor, tax examiner, tax examining assistant, office automation coordinator, interpreter, data transcriber, teller, secretary typist, secretary stenographer, and computer programmer.

Before the district court entered a permanent injunction, defendants IRS and OPM were requiring current employees in these positions to answer the following questions on the SF-85P:

19a. 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.), 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).

b. Have you experienced problems (disciplinary actions, 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.)

An affirmative answer to either question obliges the employee to reveal the dates on which illegal substances were used, the types of substances used, "the nature of the activity," "any other details relating to" the activity and "any treatment or counseling received."

It is clear that affected employees are "required" to respond to the questions. Pursuant to regulation, failure to answer either question subjects employees to adverse action, up to and including removal from their positions. 5 C.F.R. Sec. 731.303. It is further undisputed that the government has not given employees criminal use immunity for potentially incriminating responses to Question 19.


On October 10, 1989, the NTEU filed this lawsuit alleging that the IRS's use of the questionnaire 1) violated its members' Fifth Amendment privilege against self-incrimination and 2) violated its members' constitutional right to privacy. The individual plaintiff, Carrie Bravo, was added by amended complaint. Plaintiffs alleged that forcing IRS employees to reveal illegal drug activity, "under pain of losing their jobs" and "without giving them recorded guarantees of criminal use immunity" violates their Fifth Amendment right against self-incrimination.

The NTEU and Bravo also alleged that requiring employees to disclose alcohol or drug problems experienced off the job violates the employees' constitutional right to privacy by inquiring into intimate, personal matters in an overly broad manner and without substantial 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 against self-incrimination and right to privacy. With respect to the Fifth Amendment claim, the court reasoned that where a public employer seeks information from an employee that might be incriminating, the employee cannot be required to answer unless the questions are "specifically, directly and narrowly" related to the employee's performance of official duties. It observed that the IRS employees who were questioned about illegal activity--"public trust" employees--were charged only with performing such functions as dealing with the public, investigating records, and filing. It therefore concluded that questions pertaining to off-duty drug use or problems were not sufficiently related to these duties to warrant the government's asking for potentially incriminating information.

The court also held that questions concerning off-duty problems with drugs or alcohol violated the plaintiffs' constitutional right to privacy. It reasoned that any such problems relate to intimate and highly personal information, and that the Constitution generally protects individuals from having to disclose personal matters. The court concluded that the government had not shown a connection between off-duty substance abuse and suitability for IRS public trust employment, and that the government's asserted interest in keeping drug users out of the federal work force did not give rise to a legitimate interest sufficient to outweigh the employees' privacy interest.

The court accordingly entered judgment enjoining further questioning of employees with regard to illegal drug activity or substance abuse and barring the government from making any use of answers already supplied by such inquiries. The government appeals.


The government argues on appeal, first, that the plaintiffs lack standing to assert the Fifth Amendment privilege. Second, the government argues that the district court further erred in granting standing to the plaintiffs to assert the constitutional right to privacy on behalf of the affected IRS employees, and in holding that the IRS questionnaire violates the employees' right to privacy.


Determining whether the plaintiffs have standing requires that we consider both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise. The requirement of standing is designed to confine the federal courts to their proper--and properly limited--role in a democratic society. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975).

"In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a 'case or controversy' between himself and the defendant within the meaning of Art. III. This is the threshold question in every federal case, determining the power of the court to entertain the suit." Warth, 422 U.S. at 498, 95 S.Ct. at 2205. "[A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.' " Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758.

As previously noted, NTEU Chapter 247 brought this action as the representative of certain of its members who are IRS "public trust" employees in Austin, Texas, and who would be required to answer the government's questionnaire absent the district court's injunction. As the matter relates to standing, an association may have standing solely as the representative of its members, even in absence of injury to itself. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 342, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977); Warth, 422 U.S. at 511, 95 S.Ct. at 2211; National Motor Freight Traffic Association v. United States, 372 U.S. 246, 83 S.Ct. 688, 9 L.Ed.2d 709 (1963). "The possibility of such representational standing, however, does not eliminate or attenuate the constitutional requirement of ...

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