* Circuit Judge of the Ninth Circuit, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-8597

_____________________

NATIONAL TREASURY EMPLOYEES UNION

and CARRIE L. BRAVO,

Plaintiffs-Appellees,

versus

U.S. DEPARTMENT OF THE TREASURY,

U.S. INTERNAL REVENUE SERVICE and

U.S. OFFICE OF PERSONNEL MANAGEMENT,

Defendants-Appellants.

_________________________________________________________________

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-2-

not have standing to assert either their Fifth Amendment claim or

their right to privacy claim.

I

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 broug ht 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 comprehensiv e government-wide questionnaire

known as the SF-85P. The plaintiffs claim that the questionnaire

violates the employees' Fifth Amendment protection against selfincrimination 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 i mpact to the efficiency of the service, and it has

denominated those positions as "public trust" positions.

Incum bents 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-3-

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.

B efore the district court entered a permanent injun ction,

defendants IRS and OPM were requi ring 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.), depres sants (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."-4-

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.

II

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 priv acy. The individual

plaintiff, Carrie Bravo, was added by amended complaint.

Plaint iffs 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 emp loyees to

disclose alcohol or drug problems experienced off the job violates

t he employees' constitutional right to privacy by inquiring into

intimate, personal matters in an over ly broad manner and without

substantial justification.

The district court, ruling on cross-mo tions 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 it s claims that the government had violated its members'-5-

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 w ere not sufficiently related to these duties to

warrant the government's asking for potentially incriminating

information.

The court also held that questions concerni ng 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 informati on, 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 in terest 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.-6-

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.

III

T he government argues on appeal, first, that the plai ntiffs

lack standing to assert the Fifth Amendment privilege. Second, the

government argues that the district court further erred in granting

s tanding to the plaintiffs to assert the constitutional right to

privacy on behalf of the affected IRS employees, and in holding

that the IRS questionn aire violates the employees' right to

privacy.

A

Determining whether the plaintiffs have standing requires that

we consider both constitutional l imitations on federal court

jurisdiction and prudential limitations on its exercise. The

requirement of standing is designed to confine the federal courts

to their prope r--and properly limited--role in a democratic

society. S ee Valley Forge Christian College v. Americans United

for Separ ation 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 ma de out a `case or-7-

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." W arth

,

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. H unt 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 (1963).

"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

,-8-

405 U.S. 727, 734-41, 92 S.Ct. 1361, 1365-69 (1972)). In addition,

there are two other requireme nts for associational standing. As

stated by Hunt , the test for representational standing requires

that:

(1) the members of the association wo uld have standing

individually;

(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

lawsuit.

Hunt , 432 U.S. at 343, 97 S.Ct. at 2441.

B

First, we must apply these standing p rinciples to the

plaintiffs' Fifth Amendment claim. We hold that because it failed

to satisfy th e first prong of the H unt 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. M etropolitan 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.-9-

at 472, 102 S.Ct. at 758 (1982); Allen v. Wright

, 468 U.S. 737,

751, 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." W arth

, 422 U.S. at 500, 95 S. C t. at 2206

(citation omitted).

Decisions allowing standing in Fifth Amendment cases will fall

generally into two categories: First, where a plaintiff remains

silent, asserts t he Fifth Amendment privilege against selfi ncrimination, and is then subjected to some sanction or pena lty

for refusing to testify, he clearly can assert a Fifth Amendment

claim. Gardner v. Broderick , 392 U.S. 273, 88 S.Ct. 1913 (1968);

Uni f ormed 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 selfincrimination was not knowing and vol untary, a justiciable claim

will surely exist. L efkowitz v. Cunningham

, 431 U.S. 801, 805, 97

S.Ct. 2132, 2135 (1977); Garrity v. New Jerse y , 385 U.S. 493, 87

S.Ct. 616 (1967).

In the present case, however, the plaintiffs do not allege

that any represented member of the NTEU has actually suffered any-10-

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 t hat 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

injury.

What is particularly troublesome to their assertion of

standing, how ever, 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 anot her 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-

02, 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 is1 The other privacy interest protected by the law is the

interest in independence in making certain kinds of important

personal decisions. S ee Roe v. Wade

, 4 10 U.S. 113, 93 S.Ct. 705

(1973).

-11- concerned--only hypothetical and conjectural. Thus, neither the

N TEU nor Carrie Bravo has Art. III standing to assert a Fifth

A mendment claim, and, accordingly, we vacate the judgment of the

district court in this respect.

C

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." S ee 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

test.

Although the constitutional right to privacy remains largely

und efined, there are at least two clear strands of privacy

interests that have been addressed by the courts. Whalen v. Roe

,

4 29 U.S 589, 598-99, 97 S.Ct. 869, 876 (1977). The particular

right asserted here is the "indi vidual interest in avoiding

disclosure of personal matters," id.

, which is properly called the

right to confidentiality. P lante 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's2 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. S ee 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 (1983).

3 The constitutional right of privacy at issue in the present

case (discussed in Whale n , 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 on ly to) a person's

"re asonable expectations." S ee Rakas v. Illinois

, 439 U.S. 128,

143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978) (citing K atz v.

United States

, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576

(1976)).

-12- interest in disclosure against the individual's privacy interest.

Woodland v. City of Houston

, 940 F.2d 13 4, 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 I RS questionnaire seeks information in which the

employees may have a reasonabl e expectation of privacy. 3 S ee

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. S ee United States4 The reasoning of these Fourth Amendment cases regarding

standing is admittedly circular. S ee Lucas v. South Caroli n a

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

subst antive 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." E lwood

, 993 F.2d at 1151 n.22

(citing Rakas , 439 U.S. at 143, 99 S.Ct. at 430, 58 L.Ed.2d 387).

5 In the National Drug Interdiction Impro vement 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 t he United States is essential."

Furthermore, the last two executive administrations have appointed

a "drug czar" to lead the war against d rugs. S ee also 134 Cong.

Rec. S15,964 (statement of Sen. Gramm) ("`We are not going to

-13- v. Elwood , 993 F.2d 1146, 1151 (5th Cir. 1993); U nited St ates v.

Pofahl , 990 F.2d 1456, 1478 n.23 (5th Cir. 1993). 4

We begin this inquiry by noting that w hether 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 Thetolerate 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 goi ng to pay for it.'");

134 Cong. Rec. S15,986 (statement of sen. Karnes) ("[D]rug use in

the w orkplace costs at least $100 billion annually in lost

productivity from on-the-job accidents, illnesses and

absenteeism.")

6 See NTEU v. Von Raab

, 489 U.S. 656, 109 S.Ct. 1384, 1394

(1989) ("Customs employees who are di rectly 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

wit h respect to medical and financial information is reduced

because employees had previously been required to disclose similar

informa tion), P lante

, 575 F.2d at 1135 (discussing the privacy

expectations of state senators).

-14- 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, g iven 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 employ ee's position and duties. 6 As previously

noted, the OPM has established criteria and procedu res for

determ ining the "suitability" of employees in the federal civil

service. More specifically, the OPM mandated that each position7 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.

-15- 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 s ervice. 7 Consequently,

any employee who occupies a position of public trust is aware of

his employer's elevated expectations i n his integrity and

performance. He is thus charged with a diminished expectation of

privacy concerning his past personal history that is rele vant to

this elevated expectation, including his alcohol and illegal drug

abuse history. In short, public trust employees know that they

have diminish ed rights to withhold personal information that

compromises the right of the public to repose trust and confidence

in them.8 The questionnaire asks the employ ee if he has ever

experienced problems, on or off a job, fromhis 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

received."

-16- 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 els e, 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 pres ent case have no reasonable

expectation that they can keep confidential from their government

employer the information requested by t he 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-17-

citizens. S ee 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.

IV

With respect to both the Fifth Amendment claim and the right

to privacy claim, the NTEU has failed to show that its members, or

a ny 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.