National Treasury Employees Union v. U.S. Dept. of Treasury ( 1994 )

                               FOR THE FIFTH CIRCUIT
                                    No. 92-8597
    and CARRIE L. BRAVO,
             Appeal from the United States District Court for the
                           Western District of Texas
                       (June 22, 1994)
    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
          Circuit Judge of the Ninth Circuit, sitting by designation.
    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
         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
         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. § 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.   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
         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
           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
           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 (1982); Warth v. Seldin, 
    422 U.S. 490
    , 498, 
    95 S. Ct. 2197
    , 2205 (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 (1977);
    Warth, at 511, 95 S.Ct. at 2211; National Motor Freight Traffic
    Association v. United States, 
    372 U.S. 246
    83 S. Ct. 688
    "The possibility of such representational standing, however, does
    not eliminate or attenuate the constitutional requirement of a case
    or controversy.    The association must allege that its members, or
    any one of them, are suffering immediate or threatened injury as a
    result of the challenged action of the sort that would make out a
    justiciable case had the members themselves brought suit."     Warth
    422 U.S. at 511, 95 S.Ct. at 2211-12 (citing Sierra Club v. Morton,
    405 U.S. 727
    , 734-41, 
    92 S. Ct. 1361
    , 1365-69 (1972)). In addition,
    there are two other requirements for associational standing.                       As
    stated by Hunt, the test for representational standing requires
           (1)   the members of        the   association        would    have    standing
           (2)   the interests pursued through the litigation are germane
                 to the association's purpose; and
           (3)   neither the claim asserted nor the relief requested
                 requires the participation of individual members in the
    Hunt, 432 U.S. at 343, 97 S.Ct. at 2441.
           First,   we   must   apply    these       standing     principles      to   the
    plaintiffs' Fifth Amendment claim.              We hold that because it failed
    to satisfy the first prong of the Hunt test to show that its
    members, or any one of them, would have standing individually, the
    NTEU    lacks   standing     to    assert       the   Fifth      Amendment     claim.
    Similarly, we hold that the individual plaintiff, Carrie L. Bravo,
    has also failed to show that she has standing to assert her claim.
           As outlined above, the critical standing question is whether
    the plaintiff has demonstrated a personal, distinct, and palpable
    injury-in-fact       that   is    fairly       traceable    to    the   defendant's
    allegedly unlawful conduct, and that such and injury is likely to
    be redressed by a favorable judicial decision.                   Metropolitan Wash.
    Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc.,
    501 U.S. 252
    111 S. Ct. 2298
    , 2306 (1991); Valley Forge, 454 U.S.
    at 472, 102 S.Ct. at 758 (1982); Allen v. Wright, 
    468 U.S. 737
    104 S. Ct. 3315
    , 3324 (1984).          "Although standing in no way
    depends on the merits of the plaintiff's contention that particular
    conduct is illegal, it often turns on the nature and source of the
    claim asserted."      Warth, 422 U.S. at 500, 95 S.Ct. at 2206
    (citation omitted).
         Decisions allowing standing in Fifth Amendment cases will fall
    generally into two categories:        First, where a plaintiff remains
    silent,   asserts   the   Fifth    Amendment    privilege    against   self-
    incrimination, and is then subjected to some sanction or penalty
    for refusing to testify, he clearly can assert a Fifth Amendment
    claim.    Gardner v. Broderick, 
    392 U.S. 273
    88 S. Ct. 1913
    Uniformed Sanitation Men Association, Inc. v. Commissioner of
    Sanitation of New York, 
    392 U.S. 280
     (1968).                Second, where a
    plaintiff has refrained from invoking the privilege, given an
    incriminating statement, and then seeks to bar the use of the
    statement in a later criminal proceeding--either on the ground that
    the statement was coerced, or on the related ground that the
    witness's    ostensible   waiver    of    the   privilege    against   self-
    incrimination was not knowing and voluntary, a justiciable claim
    will surely exist.    Lefkowitz v. Cunningham, 
    431 U.S. 801
    , 805, 
    97 S. Ct. 2132
    , 2135 (1977); Garrity v. New Jersey, 
    385 U.S. 493
    87 S. Ct. 616
         In the present case, however, the plaintiffs do not allege
    that any represented member of the NTEU has actually suffered any
    such injury as a result of the "suitability" questionnaire.                There
    is no allegation that an employee has been penalized for failing to
    waive the privilege; indeed, there is no allegation that any
    employee has even asserted the privilege as a basis for declining
    to   answer    the   suitability    questionnaire;    nor     is   there    any
    allegation that an employee has provided an incriminating response,
    which the government has attempted to use against him in a criminal
    proceeding.    Consequently, the plaintiffs have failed to assert an
          What    is   particularly    troublesome   to   their    assertion     of
    standing, however, is that the plaintiffs also have not even
    alleged that there is a threat of such an injury to any individual
    member of the association; or stated another way, the plaintiffs
    have identified no "Jane Doe" member of the NTEU who, if required
    to fill out question 19 on SF-85-P, would tend to incriminate
    herself by giving truthful answers.         In order to have standing,
    "[t]he [NTEU] must show [an individual who] `has sustained or is
    immediately in danger of sustaining some direct injury' as the
    result of the challenged official conduct, and the injury or threat
    of injury must be both `real and immediate,' not `conjectural' or
    `hypothetical.'"      City of Los Angeles v. Lyons, 
    461 U.S. 95
    , 101-
    103 S. Ct. 1660
    , 1665 (1983).        Because the NTEU has failed to
    identify even one individual who would be forced to incriminate
    himself by truthfully responding to the drug-related questions, it
    is clear to us that the injury alleged is--as far as this suit is
    concerned--only hypothetical and conjectural.               Thus, neither the
    NTEU nor Carrie Bravo has Art. III standing to assert a Fifth
    Amendment claim, and, accordingly, we vacate the judgment of the
    district court in this respect.
         We next turn to the plaintiffs' right to privacy claim and,
    once again, address the issue of standing.           As previously noted, we
    must consider the question of standing in the light of "the nature
    and source of the claim asserted."            See Warth, 422 U.S. at 500, 95
    S.Ct. at 2206.     We hold that because the NTEU has failed to show
    that its individual members have standing to assert the right to
    privacy claim, it has once again failed the first prong of the Hunt
         Although the constitutional right to privacy remains largely
    undefined,   there   are    at    least     two   clear   strands   of    privacy
    interests that have been addressed by the courts.              Whalen v. Roe,
    429 U.S 589, 598-99, 
    97 S. Ct. 869
    , 876 (1977).                 The particular
    right   asserted   here    is    the   "individual    interest      in   avoiding
    disclosure of personal matters," id., which is properly called the
    right to confidentiality.        Plante v. Gonzalez, 
    575 F.2d 1119
    , 1132
    (5th Cir. 1978).1     In addressing the merits of an individual's
    right to confidentiality claim, a court must weigh the government's
            The other privacy interest protected by the law is the
    interest in independence in making certain kinds of important
    personal decisions. See Roe v. Wade, 
    410 U.S. 113
    93 S. Ct. 705
    interest in disclosure against the individual's privacy interest.
    Woodland v. City of Houston, 
    940 F.2d 134
    , 138 (5th Cir. 1991);
    Fraternal Order of Police, Lodge 5 v. City of Phila., 
    812 F.2d 105
    110 (3d Cir. 1987); see Plante, 575 F.2d at 1134.2
         Initially, therefore, we must identify what interests of
    privacy   the   plaintiffs   have   in   the   present   case.   More
    specifically, the question we must ask is whether, and to what
    extent, the IRS questionnaire seeks information in which the
    employees may have a reasonable expectation of privacy.3          See
    Fraternal Order of Police, 812 F.2d at 112; see also, Plante, 575
    F.2d at 1135 (discussing the privacy that senators "may reasonably
    expect"). A plaintiff who has no reasonable expectation of privacy
    does not have standing to sue in federal court.     See United States
          In conducting this balance, the Fifth Circuit applies what
    has been aptly described as an intermediate standard of review
    rather than a strict-scrutiny analysis. See Woodland, 940 F.2d at
    138; DuPlantier v. United States, 
    606 F.2d 654
     (5th Cir. 1979);
    Plante, 575 F.2d at 1134; see also Barry v. City of New York, 
    712 F.2d 1554
    , 1559 (2d Cir.), cert. denied, 
    464 U.S. 1017
    104 S. Ct. 548
          The constitutional right of privacy at issue in the present
    case (discussed in Whalen, 429 U.S at 598-99, 97 S.Ct. at 876),
    like the right of privacy protected directly by the Fourth
    Amendment, is defined by (and extends only to) a person's
    "reasonable expectations." See Rakas v. Illinois, 
    439 U.S. 128
    99 S. Ct. 421
    , 430, 
    58 L. Ed. 2d 387
     (1978) (citing Katz v.
    United States, 
    389 U.S. 347
    , 353, 
    88 S. Ct. 507
    , 512, 
    19 L. Ed. 2d 576
    v. Elwood, 
    993 F.2d 1146
    , 1151 (5th Cir. 1993); United States v.
    990 F.2d 1456
    , 1478 n.23 (5th Cir. 1993).4
         We      begin   this    inquiry    by   noting   that   whether      a   public
    employee's expectation of privacy with regard to a certain zone of
    personal information is reasonable depends, in part, upon society's
    established values and its expectations of its public servants, as
    reflected in our representative government.                See, e.g., Fraternal
    Order of Police, 812 F.2d at 113 (expectation of privacy with
    respect to medical information is reasonable because various rules
    and statutes recognize its confidential character); see also Trop
    v. Dulles, 
    356 U.S. 86
    , 101, 
    78 S. Ct. 590
     (1958) (discussing the
    "evolving      standards      of   decency"    reflected     in    constitutional
    rights).       Today's      society    has   made   the   bold    and   unequivocal
    statement that illegal substance abuse will not be tolerated.5                   The
            The reasoning of these Fourth Amendment cases regarding
    standing is admittedly circular.      See Lucas v. South Carolina
    Coastal Council, ___ U.S. ___, ___, 
    112 S. Ct. 2886
    , 2903, 
    120 L. Ed. 2d 798
     (1992) (Kennedy, J., concurring). The constitutionally
    protected right can be asserted only by those who have "reasonable
    expectations," but the question of what is reasonable is a
    substantive question that must be addressed by the courts.
    Accordingly, the Supreme Court in Rakas noted that the standing
    inquiry is essentially subsumed in the substantive consideration.
    "We have continued, however, to use `standing' as a shorthand
    description of this inquiry."      Elwood, 993 F.2d at 1151 n.22
    (citing Rakas, 439 U.S. at 143, 99 S.Ct. at 430, 
    58 L. Ed. 2d 387
          In the National Drug Interdiction Improvement Act of 1986,
    Pub. L. No. 99-570, § 3002, 100 Stat. 3207, the Congress found that
    a "balanced, coordinated, multifaceted strategy for combating the
    growing drug . . . problem in the United States is essential."
    Furthermore, the last two executive administrations have appointed
    a "drug czar" to lead the war against drugs. See also 134 Cong.
    Rec. S15,964 (statement of Sen. Gramm) ("`We are not going to
    government declared an all-out war on illegal drugs more than a
    decade ago.      Since that time, the government has spent billions of
    dollars in an attempt to mitigate, if not eliminate, what has been
    publicly declared one of the primary evils of our contemporary
    society.        Surely    anyone   who   works    for   the   government   has   a
    diminished expectation that his drug and alcohol abuse history can
    be kept secret, given that he works for the very government that
    has declared war on substance abuse.
         The extent to which an individual's expectation of privacy in
    the employment context is reasonable depends, in a significant
    part, upon the employee's position and duties.6                   As previously
    noted,    the    OPM     has   established      criteria   and   procedures   for
    determining the "suitability" of employees in the federal civil
    service.    More specifically, the OPM mandated that each position
    tolerate that use. If you are addicted, you need to get help. We
    want to help you and we want to get you off drugs. But if you are
    not addicted, if you are simply using drugs because you choose to
    do it, we want you to know that you are going to pay for it.'");
    134 Cong. Rec. S15,986 (statement of sen. Karnes) ("[D]rug use in
    the workplace costs at least $100 billion annually in lost
    productivity    from   on-the-job    accidents,   illnesses   and
           See NTEU v. Von Raab, 
    489 U.S. 656
    109 S. Ct. 1384
    , 1394
    (1989) ("Customs employees who are directly involved in the
    interdiction of illegal drugs or who are required to carry firearms
    in the line of duty . . . have a diminished expectation of privacy
    in respect to the intrusions occasioned by a urine test.");
    Fraternal Order of Police, (stating that expectation of privacy
    with respect to medical and financial information is reduced
    because employees had previously been required to disclose similar
    information), Plante, 575 F.2d at 1135 (discussing the privacy
    expectations of state senators).
    within the competitive service is to be designated as "either High,
    Moderate,      or   Low    risk    level    as     determined    by   the   position's
    potential for adverse impact to the efficiency of the service."                        5
    C.F.R. § 731.302(a) (1992)               Those positions denominated as High or
    Moderate risk are deemed "public trust" positions.
           In the present case, the members of the NTEU represented in
    this action are all "public trust employees" at the IRS, because
    they each have access to the vast stores of financial and other
    personal and confidential information contained in the tax records
    of    individual        taxpayers.         These    positions,    pursuant     to    OPM
    classification,          have     been     determined    to     involve     employment
    circumstances in which misconduct or misfeasance would prove costly
    to the public's confidence in its civil service.7                      Consequently,
    any employee who occupies a position of public trust is aware of
    his    employer's        elevated        expectations    in     his   integrity      and
    performance.        He is thus charged with a diminished expectation of
    privacy concerning his past personal history that is relevant to
    this elevated expectation, including his alcohol and illegal drug
    abuse history.          In short, public trust employees know that they
    have       diminished     rights   to     withhold    personal    information       that
    compromises the right of the public to repose trust and confidence
    in them.
         No one questions the IRS's classification of these employees
    as public trust employees. For that matter, we would not lightly
    overturn the agency's judgment in this respect.
           Finally, it is important to note, in determining generally the
    perimeters of privacy, that the IRS's questionnaire requires these
    public trust employees only to disclose information to the IRS, as
    their employer--not to anyone else, and certainly not to the
    public.    See Whalen, 429 U.S. at 600-02, 97 S.Ct. at 877; Plante,
    575 F.2d at 1133; United States v. Westinghouse Electric Corp., 
    638 F.2d 570
    ,     578-80   (3d   Cir.   1980)     (one   factor       to     consider     is
    subsequent      public      disclosure).        In   other        words,    the    IRS's
    questionnaire makes only a minimal intrusion on the "privacy" of
    its employees, designed to satisfy its need for access.
           Given the importance that the public and its representative
    government attach to a drug-free society, given that the employees
    represented in this action are all "public trust" employees at the
    IRS, and given that the information collected by the questionnaire
    will not       be   publicly   disclosed,       we   hold    that    the    individual
    employees represented in the present case have no reasonable
    expectation that they can keep confidential from their government
    employer the information requested by the IRS in questionnaire
    SF-85P.8       We    take   pains   to    underscore        the    obvious:       we   are
    determining the rights of NTEU members in their capacity as public
    trust employees and certainly not in their role as ordinary private
             The questionnaire asks the employee if he has ever
    experienced problems, on or off a job, from his use of illegal
    drugs or alcohol. If the employee gives an affirmative answer, he
    is then obliged to reveal "the nature of the activity," "any other
    details relating to" the activity, and "any treatment or counseling
    citizens.   See Plante, 575 F.2d at 1134-35.    We hold, therefore,
    that no individual employee represented by the NTEU in this case
    could have standing to bring a right to privacy claim individually.
    The NTEU has thus failed to satisfy the first prong of the Hunt
    test and, therefore, lacks standing to assert its right to privacy
    claim; the individual plaintiff, Carrie Bravo, thus lacks standing
    as well.
         With respect to both the Fifth Amendment claim and the right
    to privacy claim, the NTEU has failed to show that its members, or
    any one of them, has standing individually.      Thus, the NTEU has
    failed the first prong of the Hunt test for associational standing,
    and as a necessary corollary, the individual plaintiff, Carrie L.
    Bravo, has also failed to establish standing. We therefore reverse
    and vacate the judgment of the district court and remand for entry
    of judgment accordingly.
                                                   REVERSED and VACATED.