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NATIONAL TREASURY EMPLES. UNION v. U.S. DEPT. OF T

December 1, 1993

NATIONAL TREASURY EMPLOYEES UNION, et al., Plaintiffs,
v.
U.S. DEPARTMENT OF TREASURY, et al., Defendants.



The opinion of the court was delivered by: HAROLD H. GREENE

 The National Treasury Employees Union (NTEU) and a number of individual plaintiffs seek a preliminary injunction to restrain the U.S. Customs Service from requiring employees in eight different positions to respond to various inquiries on a questionnaire, the claim being that the requirement unconstitutionally violates their right to privacy. NTEU also seeks an injunction to restrain the Customs Service from requiring employees, absent a grant of use immunity, to answer a question concerning their own drug use, the claim being that the requirement violates their Fifth Amendment self-incrimination rights. Pursuant to a stipulation between the parties, Customs is currently refraining from requiring employees in the positions at issue to complete the forms. This stipulation expires this day, December 1, 1993, eight days after a hearing on the motion.

 I

 Background

 This case was last before the Court in February 1993. At that time, the Court issued a temporary restraining order while considering the merits of the preliminary injunction request. In the meantime, the Court of Appeals issued its decision in National Federation of Federal Employees v. Greenberg, 299 U.S. App. D.C. 261, 983 F.2d 286 (D.C. Cir. 1993), in which it reversed this Court's temporary decision in favor of the plaintiffs, holding that a facial challenge to the pertinent regulation could not succeed inasmuch as there were situations where the government was justified in demanding this information from its employees. Said the Court of Appeals, "in a facial challenge, the fact that there may arguably be some invalid applications is beside the point; what matters is whether there are any valid ones." Id. at 295.

 In light of the Court of Appeals ruling, this Court issued a Memorandum and Order on February 12, 1993, dismissing NTEU's suit for lack of standing, reasoning that the union was unable to meet the representational standing requirement that neither the claim asserted nor the relief pursued required the participation of individual members in the lawsuit. See International Union, United Auto Workers v. Brock, 477 U.S. 274, 282, 91 L. Ed. 2d 228, 106 S. Ct. 2523 (1986). *fn1" This Court also dismissed on the standing basis the claim that the Customs process was arbitrary and capricious under the Administrative Procedures Act.

 On June 24, 1993, the NTEU and several individuals filed an amended complaint. This complaint added as plaintiffs several individual employees who hold a variety of non-sensitive positions within the Customs Service, such as import specialist, commodity team aids, auditors, attorneys, computer specialists, and paralegal. *fn2" These positions primarily concern the Customs' commercial operations, and the employees are not involved in the enforcement of the drug laws, they do not carry weapons, *fn3" and they do not have access to national security information or perform public safety responsibilities.

 II

 Motion for Preliminary Injunction

 The motion for preliminary injunction has two parts.

  First. Eleven named plaintiffs who are in "commercial positions" rather than drug interdiction positions, *fn4" along with the NTEU as the representative of other Customs employees in similar positions, challenge certain questions on Standard Form SF-85P, Customs Form CF 257, and Treasury Department Form TD F 67-32.5 as invasive of their constitutional right to privacy. Plaintiffs argue that because none of these positions has duties that implicate public safety, the government lacks an adequate justification for the questions being asked of these individuals.

 Question 18 of SF-85P requires Customs employees to disclose all prior arrests and criminal charges regardless of the ultimate disposition of these charges. In fact, plaintiffs are not challenging that portion of the question that asks about prior convictions. Question 19b requires employees to disclose information about their use of drugs and consumption of alcohol, whether on duty or off. Question 20 inquires into the employees' financial records, including legal actions and loans or financial obligations that are more than 180 days delinquent. And Question 21 requests information about problems resulting from an "emotional or mental condition."

 Similarly, CF 257 requires the disclosure of extensive financial information regarding the employee and his family, including details on automobiles owned, personal effects, securities, family inheritances, trust and will administration, and real estate. Finally, TD F 67-32.5 is a release form by which the employee authorizes third parties in advance to provide the Treasury Department with his past medical history, educational records, employment information, credit reports, and other information.

 Second. NTEU challenges Question 19 of SF-85P on the ground that it violates the Fifth Amendment privilege against self-incrimination on behalf of employees similarly situated to plaintiff "John Doe." *fn5" More specifically, subsection (a) of Question 19 asks whether the employee has, in the last five years, "used, possessed, supplied, or manufactured any illegal drugs," and subsection (b) demands information about "problems" on or off the job from the use of illegal drugs or alcohol. 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." The government concedes that it has not provided to the Customs employees criminal immunity for any potentially incriminating responses to Question 19.

 III

 Standing

 The Court's February 12, 1993 Memorandum offered guidance to the plaintiffs on what they would have to do to be entitled to standing:

 
The Greenberg opinion did not foreclose the possibility that individual Customs employees could successfully challenge these questions on constitutional grounds as they applied to them. It is dubious that the government will be able to establish a sufficient nexus between the information sought in these questions and every single position within the Department of Customs . . . In order to subject these questions to constitutional scrutiny, individuals or at least each aggrieved group -- e.g., food service workers, clerk-typists, animal trainers -- must come into court to challenge them as they apply to their individual circumstances. For that reason the participation of individual union members is required and the NTEU lacks standing.

 Memorandum at 12.

 NTEU has attempted to tailor its complaint to that Memorandum language so that its complaint no longer represents a facial challenge to the regulation but one with specific "aggrieved groups" represented by the union, along with at least one named plaintiff who is an actual employee. In short, NTEU claims a status for more insular groups than it had "represented" previously.

 In Hunt v. Washington State Apple Advertising Comm., 432 U.S. 333, 343, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977), the Supreme Court held that the test for representational standing requires:

 
(1) the members of the association would have standing individually;
 
(2) the interests pursued through the litigation are germane to the associations' purpose; and
 
(3) the claim asserted nor the relief requested does not require the participation of ...

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