                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




     *
      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.

                                     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 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




                                    -2-
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."




                                     -3-
     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      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'




                                     -4-
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.




                                        -5-
       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

       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.

                                          A

       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




                                         -6-
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 (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,




                                 -7-
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

that:

       (1)   the members of        the   association        would    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     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.




                                         -8-
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."      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 (1968);

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 (1967).

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

that any represented member of the NTEU has actually suffered any




                                    -9-
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

injury.

      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-

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 is




                                    -10-
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.

                                        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."            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

test.

     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

        1
        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
(1973).




                                       -11-
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




     2
      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 (1983).
     3
      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,
143, 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
(1976)).




                                -12-
v. Elwood, 993 F.2d 1146, 1151 (5th Cir. 1993); United States v.

Pofahl, 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

         4
        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).
     5
      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




                                        -13-
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
absenteeism.")
      6
       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).




                                         -14-
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.


       7
     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-
       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

           8
         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
received."




                                         -16-
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.

                                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

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.




                               -17-
