Petition for Writ of Certiorari — Federal Employees for Non-Smokers' Rights v. United States

Supreme Court, U.

FILED

JUL 380 1979

MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

~ ee“. ae

FEDERAL EMPLOYEES FOR NON-SMOKERS’ RIGHTS, et al.,

Petitioners,

v.

UNITED STATES OF AMERICA, et al.,

Respondents.

‘PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Joe. D. JosErx

JEFFREY HILLER

JOSEPH AND HILLER

1712 Eye Street, N.W.

Suite 1010

Washington, D.C. 20006

OFC. | (202) 338-5560

pono : ROTHSTEIN Counsel for Petitioners

Washington, 0.C. + THIEL PRESB + (2702) 638-462)

ait

(t)

TABLE OF CONTENTS

Page

EES a 1

I ie ck a wc sce ecee 2

ee 2

STATUTORY PROVISIONS INVOLVED ............. 3

i 4

REASONS FOR GRANTING THE WRIT ............. 5

I. The Court of Appeals Erred in Denying Petitioners’

Suggestion for Rehearing To Reconsider the Case in

Light of the Supreme Court’s Supervening Decision

in Cannon v. University of Chicago ............. 5

A. OSHA contains an implied right of action by

federal employees for injunctive and declaratory

relief against unsafe and unhealthful working

ee a a 5

B. There is a division among the circuits about

whether there are implied rights of action for

nonmonetary relief under OSHA.............. 13

Il. The Decision Below Conflicts with Supreme Court

Precedent on the Existence of a Federal Common

SE 18

A. The Federal Government, as an employer, has 2

common law duty to furnish each employee a

reasonably safe and healthful place to work ...... 18

B. The right of Petitioners to injunctive relief is

not precluded by the Federal Employees’ Com-

Se A se ois ek on ue cece 19

C. The United States is amendable to a federal

common law action for injunctive relief in

United States District Court apply ing federal

(IR SAREE De el AS ear 21

III. The Case at Bar Presents an Important Federal

Question That Should Be Reviewed by the Supreme

MINUS RU RES Cee ieee kl. 24

(ii)

Page

APPENDIX A — Judgment of the United States Court

ES bs aide p ae be aie ik ee hoe Ra KO oe oes la

APPENDIX B — Order of the United States Court of

Appeals Denying Rehearing en banc ........-20055 3a

APPENDIX C — Opinion of the United States District

Court for the District of Columbia of March 1,

oc eo rg Pe re 4a

APPENDIX D — Order of the United States District —

Ree ees FED Wig BETO beak a tewccccéccaves 13a

APPENDIX E — State Decisions on Common Law

Te ERE CT EEE OST LEER CET eee 19a

TABLE OF AUTHORITIES

Cases:

Atlas Roofing v. OSHRC, 430 U.S. 442 (1977) ....... 24, 25

Bates v. Harp, 573 F.2d 930 (6th Cir. 1978) ........... 20

Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323 (4th Cir.

peti. DEE eR Cee POPE PO epee eee 17

Calhoun v. Harvey, 379 U.S. 134 (1964).............. lin

Capital Broadcasting Co. v. Mitchell, 405 U.S. 1000

SA NA Sok Oho CRON ae EAA ASS OEE EO me 18

*Cannon v. University of Chicago, _ U.S. ___, 99

Pe CNN, bk aces DA WS b 0 oso 056 & 00 5, 8,9, 11

J. I. Case v. Borak, 377 U.S. 426 (1964) .............. 14

Chrysler Corp. v. Brown, __ U.S. __., 99 S.Ct. 1705

ES ca ee eee aos he sa ee eek ve ee lla

Clearfield Trust Co. v. United States, 318 U.S. 363

ES Aha a tk wae kr Oks ORK Se 12, 22n, 23

Core Oem, She US. OG LIOTE) 66 kk os vic bcé ki cbbas 5,9

Federal Employees for Non-smokers’ Rights v. United

States, 446 F.Supp. 181 (D.D.C. 1978)............ 2, 4a

Galimi v. Jetco, Inc., 514 F.2d 949 (2d Cir. 1975) ........ 19

Ghent v. Lynn, 392 F.Supp. 879 (D. Conn. 1975) ....... 22n

Illinois v. City of Milwaukee, 406 U.S. 91 (1972)........ 21

*Cases marked with an asterisk are chiefly relied on.

EE were ne.

(itt)

Page

Cases, continued:

Johnson v. Maryland, 254 U.S. 51 (1920)............. 23

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978). ......... 25

*Marshall v. Whirlpool Corp., 593 F.2d 715 (6th Cir.

og SRS See ee TS eT Oe ee 12, 13, 14, 17

National Assoc. of Motor Bus Owners v. United States,

SFO UO. SOO Ceres BOTE) cg ci ck ccc cctues 19

National Railroad Passenger Corp. v. National Associ-

ation of Railroad Passengers, 414 U.S. 453 (1974) ..... lin

OSHA v. American Petroleum Institute, __. U.S. __.,

47 U.S.L.W. 3554 (Feb. 20, 1979), No. 78-911 ....... 25

Priebe & Sons v. United States, 332 U.S. 407 (1947). ..... 22n

Rambeau v. Dow, 553 F.2d 32 (7th Cir. 1977). .... 14, 15, 16

Russell v. Bartley, 494 F.2d 334 (6th Cir. 1974)......... 17

Securities Investor Protection Corp. v. Barbour, 421

a ROO 6 80. Oe BS RWWA ek oe KG we wees be lln

*Shimp v. New Jersey Bell Tel. Co., 145 N.J. Super. 516,

BGS A.26 COS CD. Bet: 1G7E) occ ke claw wee. 19, 22

Skidmore v. Travelers Ins. Co., 356 F.Supp. 670 (E.D.

La.), aff'd, 483 F.2d 67 (5th Cir. 1978) ............ 17

Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957). .... 21

Trans-Bay Engineers & Builders, Inc. , Hills, 551 F.2d

See MD 6 ps kb ke 4 oe ew Se eee oes 22n

Travelers Insurance Co. v. United States, 493 F.2d 881

Ss nee ass bow alee a AK Kelas wo 60's 20

United States v. Carson, 372 F.2d 429 (6th Cir. 1967)... .. 22n

United States v. Little Lake Misere Land Co., 412 U.S.

SP 6d CRORE DUNE CAS ONCE kee cad kes 22n

United States v. Standard Oil Co., 332 U.S. 301 |

co Sp eee ee rr eer Te eee eee 22n, 23, 24

United States v. Terrey, 554 F.2d 685 (5th Cir. 1977). .... 23

Wallis v. Pan American Petroleum Corp., 384 U.S. 63

Re 55 OER a ROR Ew ae ORs ERE hd x 21, 22

Weyerhaeuser S.S. Co. v, United States, 372 U.S.

SO MG Varkac a Ub ree dcitine teed ce cakce st, 20

(iv)

Page

Statutes:

Federal Cigarette Labeling and Advertising Act, P.L.

GO-O8, 79 Died. Fae Gees. o 6 60 +e eek nee ene ens 18

Federal Employees’ Compensation Act, 5 U.S.C. §§

SiGl ef arg. 2.2 0. pi sengnecsacepes eeenes 64 19

Occupational Safety and Health Act:

DULG. BOOS sé 6:6 wR ETE I ee ee eee 9

Ds puniteutulne sees eee 16, 17, 18

EE 0.05.6 ss eRe S Saleen 13, 14

SOCRGaEE) cn FB) nccccwcccscesssees 14

SE a cca Ode daweken Bee 3, 6, 7, 10, 11

SO a 5.5. 6 aad eke ee ee 7

5S UBL. BESS 6k des ccaidcs doen ek 12, 20

26 U.BS.. GIRS ..c60v.cdnewriintiahaeedansehens 3

BEE 6. coc nemascéddnaseeentnwe 4

DIED 6.0 6h0'n 64K SWRECE wed og dibion 4

2 PP ory ee ee oe 4

BOGE: 68.0 occe du ceednedes an keeenes 4

| rt eer, ae rare +

Miscellaneous:

Executive Orders:

11612, 36 Fed. Reg. 19,801 (1971)... 2c ccc cccces 10

11807, 39 Fed. Reg. $5,559 (1974) ............0.. 10

29 C.P.R. Past BOSD TIGTED o vnc cc ctcb eves cviecens 10

29 G.P.R. Bast W7EES cccccecvvcessesce ceeeeenee 13

Field Operations Manual, Ch. XIX, Dept. of Labor

GROTE) «ce cvinn ens dn cee pea ees ees 10

Final Report of the Interagency Task Force on Workforce

SuGeny andi Meakile CROCE 6 x04 kdb de. sot tienes 10

H: Rep. 91-1291, 91st Cong. 2d Sess. (July 9,1970) ...... 8

(v)

Page

Miscellaneous, continued:

Occupational Safety and Health Statistics of the

Federal Government, 1976 (OSHA 2066) (GPO

ETc da so 5 wae 0 6a a 4 6540s 10

President’s Report on Occupational Safety and Health

Activities in the Federal Government, 1978 (1978) ..... 10

M. Rothstein, Occupational Safety and Health Law

oy Eo: aa re arr 11,17

S. Rep. 91-1282, 91st Cong. 2d Sess., October 6,1970 ....7,8

U.S. Department of Labor, Occupational Injuries and III-

nesses in the United States by Industry, 1976 (1978). ... 10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

Ne.

FEDERAL EMPLOYEES FOR NON-SMOKERS’ RIGHTS, et al.,

Petitioners,

v.

UNITED STATES OF AMERICA, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners, Federal Employees for Non-smokers’

Rights (FENSR), two other non-profit non-smokers’

rights organizations, and 27 federal employees, respect-

fully pray that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the

District of Columbia Circuit entered in this proceeding

on May 2, 1979 and May 30, 1979.

OPINIONS BELOW

The May 2, 1979 judgment of the United States Court

of Appeals for the District of Columbia has not been

]

2

reported. The judgment is reproduced as Appendix A.

The Order of the Court of Appeals of May 30, 1979

denying petitioners’ suggestion of a rehearing en banc is

reproduced as Appendix B. The opinion of the United

States District Court for the District of Columbia, dated

March 1, 1978, has been reported at 446 F.Supp. 181,

and is reproduced as Appendix C. The decision of the

district court, dated April 2, 1978, has not been reported.

It is reproduced as Appendix D.

JURISDICTION

The judgment of the Court of Appeals for the District

of Columbia Circuit was entered on May 2, 1979, a

rehearing was denied on May 30, 1979, and this petition

for certiorari was filed within 90 days of both dates. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1). ,

QUESTIONS PRESENTED

1. Whether the Court of Appeals erred in finding that

the Occupational Safety and Health Act (OSHA) does

not contain an implied equitable remedy for breaches of

the duty of federal officers to provide federal employees

a safe and healthful work environment.

2. Whether the Court of Appeals erred in finding that

it had no jurisdiction over the common law claim against

the federal government for failing to provide a safe and

healthful work environment.

3

STATUTORY PROVISIONS INVOLVED

29 U.S.C. §668. PROGRAMS OF

FEDERAL AGENCIES

Establishment, Development and Maintenance

by Head of Each Federal Agency

(a) It shall be the responsibility of the head of each

Federal agency to establish and maintain an effective and

comprehensive occupational safety and health program

which is consistent with the standards promulgated under

section 655 of this title. The head of each agency shall

(after consultation with representatives of the employees

thereof )—

(1) provide safe and healthful places and conditions

of employment, consistent with the standards set under

section 655 of this title;

(2) acquire, maintain, and require the use of safety

equipment, personal protective equipment, and devices

reasonably necessary to protect employees;

(3) keep adequate records of all occupational acci-

dents and illnesses for proper evaluation and necessary

correction action;

(4) consult with the Secretary with regard to the

adequacy as to form and content of records kept pur-

suant to subsection (a) (3) of this section; and

(5) make an annual report to the Secretary with

respect to occupational accidents and injuries and the

agency’s program under this section. Such report shall

include any report submitted under section 7902(e) (2)

of Title 5.

4

STATEMENT OF THE CASE

Petitioners filed suit in the United States District Court

for the District of Columbia against the United States and

the heads of major federal agencies seeking limitations

on cigarette smoking in federal workplaces necessary to

protect the health of federal employees. The jurisdic-

tion of the district court was invoked under 28 U.S.C.

§§ 1331 (federal question), 1343 (civil rights), 1346

(United States as a defendant), 1361 (action to compel

officer of the United States to perform his duty), and

2201 and 2202 (declaratory judgment).

Petitioners’ complaint alleged that the Federal Govern-

ment (1) breached its common law duty to provide

employees with a safe and healthful work environment

(common law claim); and (2) breached the Occupational

Safety and Health Act by failing to provide safe ‘and

healthful places and conditions of employment (OSHA

claim).

The gravamen of petitioners’ complaint is that tobacco

smoke is a clear and present danger to health and is not

merely a tolerable inconvenience or minor discomfort.

Petitioners contend that tobacco smoking is associated

with increased risk of lung, lip, oral, larynx, esophagus

and bladder cancer; or coronary heart disease and stroke;

and of such lung disorders as chronic bronchitis and

emphysema. Petitioners further contend that as non-

smokers they are exposed to these health hazards by

being compelled involuntarily to inhale tobacco smoke

at their workplace.

Petitioners requested that defendants be ordered to

limit smoking to certain work areas so that federal

employees can perform their-functions without being

forced to inhale and ingest harmful pollutants which are

5

not, of course, necessary by-products of the govern-

mental process.

The district court dismissed petitioners’ common law

claim for lack of jurisdiction. The district court dismissed

the petitioners’ OSHA claim, ruling that the Occupational

Safety and Health Act does not provide for a cause of

action against federal employers. The Court of Appeals

affirmed, without opinion, generally for the reasons

stated in the district court’s opinion.

REASONS FOR GRANTING THE WRIT

I. THE COURT OF APPEALS ERRED IN DENYING

PETITIONERS’ SUGGESTION FOR REHEARING

TO RECONSIDER THE CASE IN LIGHT OF THE

SUPREME COURT’S SUPERVENING DECISION IN

CANNON v. UNIVERSITY OF CHICAGO

A. OSHA Contains an Implied Right of Action

by Federal Employees for Injunctive and

Declratory Relief Against Unsafe and

Unhealthful Working Conditions

In Cannon v. University of Chicago, 99 S.Ct. 1946,

1953-63 (1979), the Supreme Court refined the four

factors of Cort v. Ash, 422 U.S. 66, 78 (1975), which are

used as indicators of a congressional intent to make a

remedy available to a special class of litigants. Those four

factors are as follows: First, was the statute enacted for

the benefit of a special class of which the plaintiff is a

member? Second, is there any indication of legislative

intent, explicit or implicit, either to create such a remedy

or deny one? Third, is it consistent with the underlying

purposes of the legislative scheme to imply such a remedy

for the plaintiff? Fourth, is the cause of action one

traditionally relegated to state law in an area basically the

6 7

concern of the States, so that it would be inappropriate (5) make an annual report to the Secretary with

to infer a cause of action based solely on federal law? | respect to occupational accidents and injuries and

Th t acti : the agency’s program under this section. Such

Rae peel pear fab are _——_fepor all inclie any report submited under

remedy available to plaintiffs. | section 7902(e)(2) of title 5, United States Code.

The congressional intent underlying this subsection, as

| well as § 19(b) through (d), 29 U.S.C. § 668(b) and (c),

1. Petitioners are members of the protected class

is clearly to protect the health of federal employees. This

The threshold question under Cort is whether the | legislative intent is indicated in the following excerpt

statute was enacted for the benefit of a special class of | from S. Rep. 91-1282, 91st Cong., 2d Sess. (Oct. 6,

which plaintiffs are members. The starting point is the 1970), at 18-19: 3 |

language of the statute. ,

Section 19(a) of OSHA, 29 U.S.C. § 668 (a), provides:

It shall be the responsibility of the head of each

Federal agency to establish and maintain an effective

and comprehensive occupational safety and health

program which is consistent with the standards

, Promulgated under section 6. The head of each’

agency shall (after consultation with representatives

of the employees thereof )—

_ (1) provide safe and healthful places and condi-

tions of employment, consistent with the standards

set under section 6;

(2) acquire, maintain, and require the use of

safety equipment, personal protective equipment,

and devices reasonably necessary to protect em-

ployees;

(3) keep adequate records of all occupational

accidents and illnesses for proper evaluation and

necessary corrective action;

(4) consult with the Secretary with regard to the

adequacy as to form and content of records kept

pursuant to subsection (a) (3) of this section; and

FEDERAL AGENCY SAFETY PROGRAMS

AND RESPONSIBILITIES

S. 2193 provides coverage for the approximately

three million employees of the Federal Government.

‘Section 17 requires Federal agencies to promulgate .

safety and health standards consistent with those

developed by the Secretary of Labor for private

industry. * * *

During the past 25 years, there has been con-

siderable improvement in the safety record of the

Federal Government, but if it is to serve as a model

employer, there must be an increased effort to

achieve this ideal.

In 1965, President Johnson launched the Mission

\Safety-70 program in an effort to dramatically

reduce injuries among Federal employees. The plan

envisioned ,a 30 percent reduction in the frequency

rate of disabling injuries during the life of the

program. In the first four years after the plan’s

initiation, the Government progressed only 10.4

percent toward its goal. Clearly, there is a signifi-

cant margin of improvement yet to be achieved.

In order to create a more effective safety program,

the bill directs each Federal agency to purchase and

/

8

maintain safety devices and to require their use.

Agencies must also keep adequate records and make

an annual report on occupational accidents and

illnesses to the Secretary. The Secretary, in turn,

shall annually prepare and submit to the President

for transmittal to Congress his evaluations and

recommendations of the Federal safety program.

The above requirements are intended to establish

clear responsibility for the Po ederal Government’s

internal safety anu health efforts, and provide the

Secretary with an active role in coordinating the

multiplicity of programs devised by various agencies.

Congress also will be offered an opportunity to learn

of current health and safety conditions through

annual reports. [Emphasis added. ]

Similar language is contained in H. Rep. 91-1291, 91st

Cong. 2d Sess. (July 9, 1970) at 33 (to accompany H.R.

16785, which was ultimately replaced by the substitute

bill, H.R. 19200).

Moreover, as the Court in Cannon indicated, a statute

limiting its applicability to an ascertainable, expressly

identified class contrasts sharply with criminal statutes

and other laws enacted for the protection of the general

public. 99 S.Ct. at 1954. And, with only a single, unique

exception the Supreme Court “‘has never refused to imply

a cause of action where the language of the statute

explicitly conferred a right directly on a class of persons

that included the plaintiff in the case.” Jd. at n.13.

2. There is no congressional intent to deny a

private right of action

As the Court observed in Cannon, “the legislative

history of a statute that does not expressly create or

deny a private remedy will typically be equally silent or

9

ambiguous on the question.” 99 S.Ct. at 1956. This is

the case with the Occupational Safety and Health Act;

the legislative history coniains no mention of creating

or denying private. remedies for federal employees.

Nevertheless, the Court in Cannon went on to quote from

Cort that in cases “in’ which it is clear that federal law

has’ granted a class of persons certain rights, it is not

necessary tg show an intention to create a private cause

of action, although an explicit purpose to deny such

cause of action would be controlling.” Id., quoting Cort,

supra, 422 U.S. at 82 (emphasis in original).

3. Implying a private right of action ts consistent

with the purpose of OSHA

The Court in Cannon recognized that, under Cort, a

private remedy should not be implied if it would frustrate

the underlying purpose of the legislative scheme. “On the

other hand, whien, that remedy is necessary or at least '

helpful to the accomplishment of the statutory purpose, -

the Court is decidedly receptive to its implication under

the statute.” 99 S.Ct. at 1961 (footnote omitted).

Section 2(b) of OSHA, 29 U.S.C. § 651, expressly sets

forth the purpose of the Act, and provides in pertinent

part: |

(b) The Congress declares it to be its purpose and

policy, through the exercise of its powers to regulate

commerce among the several States and with foreign

nations and to provide for the general welfare, to

assure so far as possible every working man and

woman in the Nation safe and healthful working

conditions and to preserve our human resources—

[Emphasis added. ]

Actions such as’ the case at bar not only do not frus-

trate the purpose of the Act, but are essential to the

10

accomplishment of the Act’s noble objectives. The

language of § 19(a) contains a congressional directive to

the approximately 120 departments and agencies of the

Federal Government. This directive has been imple-

mented by Exec. Ordér 11612, 36 Fed. Reg. 13,891

(1971) and Exec. Order 11807, 39 Fed. Reg. 35,559

(1974). It is also the subject of regulations of the Secre-

tary of Labor, 29 C.F.R. Part 1960 (1979) and Field

Operations Manual Ch. XIX (1979).

The implementation of § 19 has been a dismal failure.

See President’s Report on Occupational Safety and

Health Activities in the Federal Government, 1976

(1978). The goal of reducing injuries and illnesses of

federal employees has not been achieved and, in fact,

there has been an increase in work-related deaths and

injuries. According to the most recent figures available,

work-related fatalities increased from 104 in 1974 to 122

in 1976. Total injuries and illnesses reported increased

from 121,052 in 1974 to 174,989 in 1976. Occupational

Safety and Health Statistics of the Federal Government,

1976 (OSHA 2066) (GPO 1978-261-017/ 34).

The dramatic increase in injuries and illnesses only

occurred among Federal Government employees. See

U.S. Department of Labor, Occupational Injuries and

Illnesses in the United States, by Industry, 1976 (1978).

This difference can be attributed to the poor enforce-

ment of the Federal Government program. See Final

Report of the Interagency Task Force on Workplace

Safety and Health (1978). Under § 19, the responsibility

for safety and health matters rests with the head of each

‘agency and the Secretary of Labor’s authority is limited

to coordination and consultation. § 19(a)(4) and (b).

OSHA standards do not apply to federal workplaces;

rather, standards must only be “consistent” with them.

§ 9 (a) (1).

11

The Act provides private sector employees with several

enforcement rights, such as the right to file a complaint

with the Secretary of Labor, the right to seek a writ of

mandamus in district court to compel the Secretary of

Labor to conduct an inspection where there is imminent

danger, and the right to participate in the inspection tour.

See M. Rothstein, Occupational Safety and Health Law

Ch.8 (West, 1978). Nevertheless, this does not mean that

Congress did not intend to authorize actions by federal

employees. As the Court explained in Cannon:

The fact that other provisions of a complex

statutory, scheme create express remedies has not

been accepted as a sufficient reason for refusing to

imply an otherwise appropriate remedy under a

separate section ....

99 S.Ct. at 1965.

Recent cases denying implied private remedies all had

statutes providiny for detailed enforcement of the rights

they created.!

The present case, however, is different. Congress

created express rights for federal employees in § 19 (a) of

_ QSHA and impliedly granted covered federal employees

the right to enforce those rights through private actions.

As the Sixth Circuit recently observed:

Congress was aware of the shortage of federal and

state occupational safety inspectors, and placed

1 See, e.g., Chrysler Corp. v. Brown, __ U.S. __., 99 S.Ct.

1705 (1979) (Trade Secrets Act); Cort v. Ash, 422 U.S. 66 (1975)

(criminal statute prohibiting illegal election contributions); Securi-

ties Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

(Securities Investor Protection Act of 1970); National Railroad

Passenger Corp. v. National. Association of Railroad Passengers,

414 U.S. 453 (1974) (Rail Passenger Service Act of 1970); Calhoon

v. Harvey, 379 U.S. 134 (1964) (Title IV of LMRDA).

12

great reliance on employee assistance in enforcing

[OSHA]. -Furthermore, it is clear that without

employee cooperation, even an army of inspectors

could not keep America’s work places safe.

Marshall v. Whirlpool Corp., 593 F.2d 715, 722 (6th Cir.

1979) (footnote omitted). To protect employees in the

private sector, Congress intended employee cooperation

to assist and augment the significantly increased number

of federal and state inspectors authorized by the Act.

For Federal Government employees, whose working

conditions were not subject to any OSHA inspections or

inspectors, Congress intended employees to have an even

greater role in enforcement. Thus, a private action is

implied in the statute.

4. The case at bar is concerned exclusively with

federal rights and remedies for which state

court action would be inappropriate

The employment relationship of federal employees is

governed exclusively by federal law. 5 U.S.C. §§ 2101-

8901. It is well settled that when federal law applies to

a case, the federal courts must “fashion the governing

rule of law according to their own standards.” Clearfield

Trust Co. v. United States, 318 U.S. 363, 367 (1943).

Most importantly, under the Supremacy Clause, the

state courts may not issue orders against the United

States. Thus, an action for injunctive and declaratory

relief against the Federal Government in its Capacity as

an employer may only be brought in United States

District Court.

13

B. There Is Division Among the Circuits About

Whether There Are Implied Rights of Action

for Nonmonetary Relief Under OSHA

| The case at bar is one of first impression. Nevertheless,

it has been recognized in other contexts that Congress

intended to @feate private fedetal remedies to redress

rights expressly created in favor of employees under

OSHA. ~

1. The Sixth and Seventh Circutts have issued

decisions suggesting the existence of implied

rights of actton

Section 11(c)(1) of OSHA, 29 U.S.C. § 660(c)(1),

provides as follows:

(c)(1) No person shall discharge or in any manner

discriminate against any employee because such

employee has filed any complaint or instituted or

caused to be instituted any proceeding under or

related to this Act or has testified or is about to

testify in any such proceeding or because of the

exercise by such employee on behalf of himself or

others of any right afforded by this Act.

The Secretary of Labor has issued a regulation, 29 C.F.R.

§ 1977.12, interpreting this provision as protecting an

employee who withdraws from peril on the job based on

a reasonable belief that there is a real danger of death or

serious injury and there is insufficient time to eliminate

the danger through regular channels.

In Marshall v. Whirlpool Corp., 593 F.2d 715 (6th

Cir. 1979), the Sixth Circuit upheld the validity of the

regulation. Of significance to the preseni case, the

court observed that even without the existence of the

regulation it would have reached the same result by

14

finding that there was a private right of action implied in

OSHA.

We would be free on our own to reach the result

of permitting an employee to withdraw from

danger. ... Indeed, the situation here is analogous

to that in a series of cases which imply civil causes

of action from statutes which otherwise do not

provide for a specific civil remedy.

593 F.2d at 725 (footnote omitted). The court went on

to explain in great detail the basis for its view that a civil

remedy is implied in the statute.

The policy factors which underlie cases allowing

implied causes of action are applicable here, how-

ever. “It is the duty of the courts to be alert to

provide such remedies as are necessary to make

effective the Congressional purpose.” /. I. Case Co.

v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 1560,

12 L.Ed.2d 423 (1964). 3

Id. at 725, n.22.

It should be noted that the court was prepared to find

an implied remedy in favor of employees despite the fact

that § 11(c)(2) and (3), 29 U.S.C. § 660(c)(2) and (3),

specifically sets forth an administrative and judicial

procedure for enforcement of rights granted under

§ 1i(c)(1). According to the court, this procedure was

not intended by Congress to be the exclusive method of

enforcing § 11(c)(1) rights.

In a case factually closer to the one at bar, Rambeau v.

Dow, 553 F.2d 32 (7th Cir. 1977), air traffic controllers

at Chicago’s O’Hare Airport brought an action against

officials of the Federal Aviation Administration and Civil

Service Commission. The plaintiffs. claimed that the

conditions of extreme: stress under which they work

= VJ

OE TIS ROA RT

15

cause permanent damage to their health, thereby violating

OSHA.

The Seventh Circuit affirmed the district court’s dis-

missal of the action because the plaintiffs failed to

exhaust administrative procedures specifically devised by

the designated agencies. The court did not directly

address the issue of whether a private cause of action

would be*available if administrative remedies were ex-

hausted. Nevertheless, the court was much less troubled

by providing a federal remedy than it was in requiring

exhaustion of available procedures.

At least for the present purposes we will accept

the defense [Government] concession that if, as a

matter of law, unsafe working conditions as alleged

in the plaintiffs’ complaint were a basis for a private

cause of action,* and the preliminary administrative

procedures necessary for exhaustion before resort to

a private cause of action had been exhausted, then

plaintiffs would not be precluded from resorting to

that private cause of action merely because some of

the factors involved were also subject to relief under

a labor contract grievance procedure.

‘

*Counsel for the plaintiffs candidly conceded that he was

unaware of any authority for a private cause of action under

OSHA which would be available to the. plaintiffs. The

defendants’ counsel did not supply any authority, however,

to the contrary. Because the issue is not before us we

express no opinion except that the issue may not be an easy

one of resolution.

Id. at 34 & n.

The court went on to state:

“It may well be that upon the filing of a subse-

quent suit in -which plaintiffs allege that they have

exhausted administrative remedies and in which

16

they make the Secretary of Labor a party, as the

defendants contend they must do, that no better

record will be established for the district court and.

no administrative expertise will be reflected in what

comes before the district court. This possibility,

however, in our mind gives us no basis to disagree

with the requirement that before going into federal

court the plaintiffs should have exhausted the

procedures. ...

Id. at 35.

In the present case, exhaustion of remedies is not an

issue. The petitioners attempted to invoke all available

procedures. Moreover, the defendants have never con-

tended that the plaintiffs failed to exhaust administrative

remedies or that any remedies were available.

2. The Court of Appeals erred in construing as

contrary precedent private actions for damages |

The Court of Appeals affirmed the district court’s

judgment on the pleadings for the defendants **generally

for the reasons stated in [the district court’s] memoran-

dum opinion.” In the district court’s order of April 28,

1978, Judge Richey relied on § 4(b)(4) of OSHA, 29

U.S.C. § 653(b)(4), to hold that no private remedy is

implied in the statute. Section 4(b) (4) provides:

(4) Nothing in this Act shall be construed to

supersede or in any manner affect any workmen’s

compensation law or to enlarge or diminish or affect

in any other manner the common law or statutory

rights, duties, or liabilities of employers and em-

ployees under any law with respect to injuries,

diseases, or death of employees arising out of, or in

the course of, employment.

17

The court interpreted this section as precluding any

private cause of action. It cited with approval Byrd v.

Fieldcrest Mills, Inc., 496 F.2d 1323 (4th Cir. 1974),

Russell v. Bartley, 494 F.2d 334 (6th Cir. 1974), and

several district court decisions refusing to imply private

damage actions under OSHA. The Sixth Circuit, however,

has recently-explained that decisions refusing to permit

damage actions should not be read broadly to preclude

all implied causes of action under OSHA.

It is true that this Circuit has held in Russell v.

Bartley, 494 F.2d 334 (6th Cir. 1974), that no

private cause of action arises from the Occupational

Safety and Health Act. Russell is in accord with the

view of other courts that both the express provisions

of the Act (see 29 U.S.C. § 653(b) (4) ) as well as the:

overall enforcement scheme (the Secretary of Labor

bringing suits on behalf of aggrieved employees)

indicated that Congress meant that no private cause

of action for damages should arise. See e.g., Skid-

more v. Travelers Ins. Co., 356 F.Supp. 670 (E.D.

La.), aff'd 483 F.2d 67 (5th Cir. 1973).

Marshall v. Whirlpool Corp., 593 F.2d 715, 725 n.22

(6th Cir. 1979). See generally M. Rothstein, Occupa-

tional Safety and Health Law § 523 (West 1978).

18

Il. THE DECISION BELOW CONFLICTS WITH

SUPREME COURT PRECEDENT ON THE

EXISTENCE OF A FEDERAL COMMON LAW

RIGHT OF ACTION

A. The Federal Government, as an Employer, Has

a Common Law Duty To Furnish to Each

Employee a Reasonably Safe and Healthful

Place To Work

1. All 50 states and the District of Columbia

recognize the exstence of the common law

duty of employers

Section 4(b)(4) of OSHA, 29 U.S.C. § 653 (b) (4),

makes it explicit that OSHA does not diminish the

common law rights of employees. All 50 states and the

District of Columbia follow the common law rule that an

employer owes to each employee a reasonably safe and

healthful place of employment. See Appendix E. |

2. The presence of cigarette smoke renders the

workplace unsafe and unhealth ful

The harmful effects of cigarette smoke are well docu-

mented. Among other ailments, cigarette smoke causes

lung cancer, emphysema, bronchitis, and heart disease.

In 1965 Congress officially recognized the hazardous

nature of cigarette smoke and declared a national policy

of warning the public of these hazards to discourage

smoking. Federal Cigarette Labeling and Advertising Act,

P.L. 89-92, 79 Stat. 282 (1965). The public policy of

discouraging smoking and limiting cigarette smoking to

designated areas has continued with judicial approval.

_See generally, Capital Broadcasting Co. v. Mitchell, 405

U.S. 1000, aff’g, 333 F.Supp. 582 (D. D.C. 1971) (three

19

judge court); (upholding ban on cigarette advertising in

electronic media); National Association of Motor Bus

Owners v. United States, 370 F.Supp. 408 (D. D.C. 1974)

(upholding restrictions on smoking on interstate buses).

3. Respondent’s common law duty extends to

> cigarette smoke

Only one other reported case has involved an action

for injunctive relief against cigarette smoke in the work-

place. In Shimp v. New Jersey Bell Telephone Co., 145

N.J. Super. 516, 368 A.2d 408 (Ch. Div. 1976), an

employee who was allergic to cigarette smoke sought an

injunction requiring the employer to prohibit smoking

in genesal working areas. The court held that the action

was not barred by the New Jersey Workmen’s Com-

pensation Act because only actions for damages are

precluded. ‘On the merits, the court held that the plaintiff

had a common law right to a safe working environment

that was violated by cigarette smoke. The employer was

ordered “‘to provitle safe working conditions for plaintiff

by restricting the smoking of employees to the non-work

area presently used as a lunchroom.” 368 A.2d at 416.

Petitioners contend that the well reasoned decision in

‘ Shimp_ should be applied to federal employees. ©

B. The Right of Petitioners to Injunctive Relief

Is Not Precluded by the Federal Employees’

Compensation Act

In their brief before the court of appeals, respondents

argue that the present action is preempted by the Federal

Employees’ Compensation Act (FECA), 5 U.S.C. § 8101

et seq. Neither the-court of appeals nor the district court

decided this issue. Nevertheless, in his Order of March 2.

20

1978, Judge Richey noted that the “exclusivity” pro-

vision of 5 U.S.C. § 8116(c) “appears only to apply to

damage suits—not injunctive actions, as the one here.”

App. lla, n. 2, citing Galimi v. Jetco, Inc., 514 F.2d 949,

952-53 (2d Cir. 1975).

The legislative history of the FECA and the over-

whelming weight of decisional law holds that the FECA

only precludes damage suits. - The congressional purpose

in enacting the FECA was to provide federal employees

with a swift, economical, and assured right of com-

pensation for injuries arising out of the employment

relationship, regardless of the negligence of the employee

or fellow employees, or the lack of fault on the part of

the United States. Weyerhaueuser S.S. Co. v. United

States, 372 U.S. 597, 601 (1963).

Although there are no reported cases involving injunc-

tive actions against the United States by employees, it has

been held that the FECA does not preempt the common

_ law right of an employee to sue another employee for

negligence, Bates v. Harp, 573 F.2d 930 (6th Cir. 1978)

or an action based on an implied contractual right to’

indemnification, Travelers Insurance Co. v. United States,

493 F.2d 881 (3d Cir. 1974).

/ The present action for injunctive and declaratory relief

o€s not contain any threat of multiplicity of recovery or

excessive governmental damage liability that the FECA

was designed to preclude. Therefore, the action is not

preempted by the FECA.

cc

21

C. The United States Is Amenable to a Federal

Common Law Action for Injunctive Relief in

United States District Court Applying Federal

‘Law

l. There is a federal common law right to a

reasonably safe and healthful place to work

The existence of a common law duty, see Part II-A,

supra, does not necessarily mean there is a: federal

common law duty. In deciding whether rules of federal

common law should be fashioned, normally the guiding

principle is that a “‘significant conflict between some

federal policy or interest and the use of state law’’ must

first be specifically shown.” Wallis v. Pan American

Petroleum Coxp., 384 U.S. 63, 68 (1966).

Consequently, a federal policy br interest is required

before the cdmmon law will be fashioned into a federal

common_law. There are several ways in which a signifi-

cant federal policy or interest may be shown. One way

to demonstrate the existence of a federal interest is for

there to be a féderal statute dealing with the general

subject. Illinois v. City of Milwaukee, 406 U.S. 91,

103 n.5 (1972), citthg Textile Workers v. Lincoln Mills,

353 U.S. 448 (1957). In the present case, the employ-

ment ‘relationship of federal employees is the subject of

numerous statutes codified at 5 U.S.C. §§ 2201-8901.

Another way in which a federal policy or interest may

be shown is where the subject of the action has a vital

effect on the powers and relations of the Federal Govern-

ment. Thus, in a variety of actions where there were vital

22

federal interests, the Supreme Court and lower courts

recognized a federal common law.?2

The Supreme Court in Wallis indicated the need for a

significant conflict between a federal policy or interest

and the use of state law. The cases demonstrate that

there can be no question about the importance of the

federal interest in the relationship between the United

States and its employees. Therefore, the remaining issue

is the “‘conflict with state law.”’. )

It is impossible to know whether there is, in fact, a

conflict with state substantive law. Although every state

recognizes the common law duty of an employer to

* provide a reasonably safe place of employment, see

Appendix E, only the Shimp case in New Jersey has’

decided the rights of employees to a smoke-free work-

place. Nevertheless, in accordance with Wallis, there is

a strong potential for conflict between federal and state

law. This fact not only bolsters the need to recognize a

federal common law in the federal employment relation-

ship, but mandates that the federal common law be

applied in order to promote uniformity among the states.’

See infra. :

2E.g., United States v. Little Lake Misere Land Co., 412 U.S.

580, 592-93 (1973) (suit by United States to quiet title); Priebe

& Sons v. United States, 332 U.S. 407 (1947) (government con-

tracts); United States v. Standard Oil Co., 332 U.S. 301 (1947)

(tort acuon by United States); Clearfield Trust Co. v. United

States, 318 U.S. 363 (1943) (rights and duties of United States on

commercial paper); Trans-Bay Engineers & Builders, Inc. v. Hills,

551 F.2d 370 (D.C. Cir. 1976) (equitable rights based on HUD

activities); United States v. Carson, 372 F.2d 429 (6th Cir. 1967)

(tortious conversion of United States property); Ghent v. Lynn,

392 F.Supp. 879 (D. Conn. 1975) (contract claims against United

States).

23

Finally, it is well settled that state laws may not be

used to interfere with the operations of the Federal

Government. See, e.g., Johnson v. Maryland, 254 U.S.

51 (1920). This constitutional problem underscores the

need for a federal common law in federal employment.

2. Fhe -iiterests of uniformity demand the

application of federal common law,to the

instant case ;

While the significant federal interests in the employ-

ment relationship give rise to a federal common law, the

interests of uniformity demand that the federal common

law be applied in the present case.

In the fandmark case of Clearfield Trust Co. v. United

States, 318 U.S. 364 (1943), the Supyeme Court identi-

fied the compelling federal interest in uniformity.

The issuance of commercial paper by the United

States is on a vast scale and transactions in that

paper from issuance to payment will commonly

occur in several states. The application of state

law . . . would subject the rights and duties of the

United States to exceptional uncertainty. It would

lead to great diversity in results by making identical

transactions subject to the vagaries of the laws of

the several states. The desirability of a uniform rule

is plain.

Id. at 367. See also United States v. Terrey, 554 F.2d

685, 692 (5th Cir. 1977).

In Clearfield the Court sought to avoid potentially

inconsistent results by applying federal law. Similarly,

federal law must be applied when the essential issue in

the case involves federal fiscal policy. In United States v.

Standard Oil Co., 332 U.S. 301 (1947), the Court held:

24

The question, therefore, is chiefly one of federal

fiscal policy, not of special or peculiar concern to

the states or their citizens. And because those

matters ordinarily are approptiate for uniform

national treatment rather than diversified local

disposition, as well where Congress has not acted

affirmatively as where it has, they are more fittingly

determina’'e by independent federal judicial deci-

sion than by reference to varying state policies.

Id. at 311.

The present case is precisely the type of action in

which application of the federal common law is essen-

tial. The employer-employee relationship of federal

employees is expressly and uniquely a creature of federal

law. There are no local state interests expressed or

implied. Uniformity of decision is essential to both the

federal employees and the United States and the rights

and remedies that could result from such‘an action would:

have a distinct and significant impact on federal fiscal

and proprietary interests.

Ill. THE CASE AT BAR PRESENTS:AN IMPORTANT

FEDERAL QUESTION THAT SHOULD BE RE-

VIEWED BY THE SUPREME COURT

The Occupational Safety and Health Act of 1970

(OSHA) is an important and sweeping piece of remedial

legislation. The Act’s purpose is to assure safe and

healthful working conditions to every worker in the

United States. The coverage of the Act is enormous—an

estimated 65 million employees in 5 million workplaces.

Since the Act went into effect in 1971, the Supreme

Court has decided only two cases arising under OSHA.

Both cases involved a constitutional issue. In Atlas

Roofing Co. v. OSHRC, 430 U.S. 442 (1977), the Court

25

held that there is no right to a jury trial under the

Seventh Amendment .in an OSHA case. In Marshall v.

Barlow’s, Inc., 436 U.S. 307 (1978), the Court held

that the Fourth Amendment prohibits nonconsensual

warrantless OSHA ‘inspections. Recently, the Court

granted certiorari in a third OSHA case, OSHA v. Ameri-

can Petroleum Institute, __. U.S. ___, 47 U.S.L.W. 3554

(Feb. 20, 1979) (No. 78-911), to review the validity of

the Secretary of Labor’s OSHA standards promulgation

procedures. In none of these cases has the Court been

confronted with the issue of the statutory rights of public

and private employees under OSHA.

. The present case raises significant federal questions

where resolution will have an extremely broad impact.

Kirst, the case concerns the rights of over 3 million

federal employees to smoke-free workplaces. In deciding

this question, the Court will determine for the first time

whether Federal Government: employees may bring

similar actions to ensure the safety and health of their

workplaces from a variety of hazards. Second, if upon

remand it is held that there is a federal common law right

to a smoke-free workplace, the impact is likely to be felt

in: the private sector.* Common law injunctive actions in

state court may be brought or there may be state or

federal rulemaking to protect the rights of nonsmokers.

Third, in deciding whether an action for injunctive relief

is implied in OSHA, the Court’s decision will affect other

cases in which other implied rights and remedies, under

OSHA are alleged. Finally, in ruling on the present case

the Court will address the wider issue of how broadly the

courts should act to uphold the congressional mandate

of a safe workplace and a safe environment.

26

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment of the District of Columbia Circuit.

-Respectfully submitted,

Joe. D. JOSEPH

JEFFREY HILLER

JOSEPH AND HILLER

1712 Eye Street, N.W.

Suite 1010

Washington, D.C. 20006

(202) 338-5560

Counsel for Petitioners = A P P E N D I X

Of Counsel:

MarRK A. ROTHSTEIN

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1978

No. 78-1469

Civil Action No. 77-1059

[Filed May 2, 1979].

[No Opinion]

FEDERAL EMPLOYEES FOR NON-SMOKERS’

RIGHTS, et al.,

Appellants

v.

UNITED STATES OF AMERICA, et al.

Appeal from the United States District Court for the

District of Columbia.

Before: WRIGHT, Chief Judge, TAMM, Circuit Judge,

and AUBREY E. ROBINSON, JR.,* District Judge.

JUDGMENT

This cause came on to be heard on the record on

appeal from the United States District Court for the

District of Columbia and was argued by counsel. While

*Of the United States District Court for the District of Colum-

bia, sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).

2a

the issues presented occasion no need for an opinio®.

they have been accorded full consideration by the court.

See Local Rule 13(c).

This court is in agreement with the resul' reached by

the District Court, generally for the reasons stated in its

memorandum opinion. See Federal Employees for

Non-Smokers’ Rights v. United States, 446 F.Supp. 181

(D. D.C. 1978).

On consideration of the foregoing, it is ORDERED and

ADJUDGED by this court that the judgment of the

District Court appealed from in this cause is hereby

affirmed.

Per Curiam

For the Court:

/s/ George A. Fisher

Clerk

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1978

No. 78-1469

[Filed May 30, 1979]

FEDERAL EMPLOYEES FOR NON-SMOKERS’

RIGHTS, et al.,

Appellants

v.

UNITED STATES OF AMERICA, et al.

BEFORE: Wright, Chief Judge; Bazelon, McGowan,

Tamm, Leventhal, Robinson, MacKinnon, Robb, and

Wilkey, Circuit Judges.

ORDER

The suggestion for rehearing en banc filed by appel-

lants Federal Employees for Non-Smokers’ Rights, e¢ al.,

having been transmitted to the full Court and no judge

in regular active service having requested a vote with

respect thereto, it is

ORDERED, by the Court, that appellants’ aforesaid

suggestion for rehearing en banc is denied.

Per Curtam

. For the Court:

/s/ George A. Fisher

Clerk

+a i

APPENDIX C

FEDERAL EMPLOYEES FOR NON-SMOKERS’

RIGHTS (FENSR), et al.,

Plaintiffs,

“0.

UNITED STATES OF AMERICA, et al.,

Defendants.

Civ. A. No. 77-1059

United States District Court

District of Columbia

March 1, 1978

(Reported at 446 F. Supp. 181)

Joel D. Joseph, Paul D. Kamerar, Washington, D.C.,

for plaintiffs.

Barbara Allen Babcock, Asst. Atty. Gen., Earl Jj.

Silbert, U.S. Atty., David J. Anderson, Catherine A.

Ribnick, Washington, D.C., for defendants.

MEMORANDUM

CHARLES R. RICHEY, District Judge.

This case is before the Court on the plaintiffs’ motion

for summary judgment and the defendants’ motion for

judgment on the pleadings. For the reasons hereinafter

stated, the Court finds that the defendants are entitled to

a judgment on the pleadings as to counts 2 (29 U.S.C.

§ 668(a)), 3 (fifth amendment), and 4 (first amendment)

of the complaint. The Court concludes that further

briefing is required as to count 1 (common law claim).

/

y

5a

In their complaint, plaintiffs allege injury as a result of

the smoking permitted in the federal buildings of the

defendants. Plaintiffs consist of several groups opposed

to smoking and various nonsmokers employed by the

federal government.. They seek declaratory and injunc-

tive relief restricting smoking to designated areas of the

defendants’ buildings and requiring the defendants to

ensure that the indoor air quality in federal facilities is

healthful and safe for federal employees. Plaintiffs assert

four causes of action‘: (1) the Occupational Safety and

Health Act of 1970 (OSH Act), 29 U.S.C. § 668(a); (2)

the first amendment to the Constitution; (3) the fifth

amendment to the Constitution; and (4) the common-

law duty of providing employees with a safe and healthful

workplace.

I. THE OCCUPATIONAL SAFETY AND HEALTH ACT

DOES NOT PROVIDE EMPLOYEES WITH A CAUSE ~*~

OF ACTION AGAINST FEDERAL EMPLOYERS.

Plaintiffs argue that 29 U.S.C. § 668(a) of the OSH

Act requires federal agencies to “‘provide safe and health-

ful places and conditions of employment ....’’ Because

plaintiffs are the intended beneficiaries of the OSH Act,

they «contend, this creates a private cause of action

enforceable in federal court. The defendants argue that

Congress did not intend to create a private right of action

under the OSH Act against these federal defendants, and

none, therefore, should be implied. The Court agrees.

In determining whether a private cause of action can

be implied from a statute, the Court must focus upon the

language of the statute and, if unclear, the legislative

history to ascertain whether Congress intended to allow

private litigants to sue. See National Railroad Passenger

Corp. v. National Assoc. of Railroad Passengers, 414 U.S.

6a

453, 94 S.Ct. 690, 38 L.Ed. 2d 646 (1974); J. 1. Case Co.

v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423

(1964). Nowhere in the OSH Act, in its legislative

history, nor in its statutory declaration of purpose and

policy is there the slightest implication that Congress

intended to create a private civil remedy against anyone

because of a violation of the Act. See Jeter v. St. Regis

Paper Co., 507 F.2d 973 (5th Cir. 1975). In fact, the

Act specifically provides that:

Nothing in the chapter shall be construed to super-

sede, or in any manner affect any workmen’s

compensation law or to enlarge or diminish or affect

in any manner the common law of statutory rights,

duties, or liabilities of employers and employees

under any law with respect to injuries, diseases, or

death of employees arising out of, or in the course

of, employment. a

229 U.S.C. § 653(b)(4) (emphasis added). Thus, the Act

itself precludes this Court from implying a private cause

of action because doing so would be to construe the Act

in a manner that would affect the common-law rights of

employers and employees by expanding the choice of

actions a plaintiff may bring, by preventing common-law

defenses from being asserted against a plaintiff, etc. See

Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323 (4th Cir.

1974); Russell v. Bartley, 494 F.2d 334 (6th Cir. 1974);

Buhter v. Marriott Hotels, Inc., 390 F.Supp. 999 (E.D.

La. 1974); Fawvor v. Texaco, Inc., 387 F.Supp. 626

(E.D. Tex. 1975); Hare v. Federal Compress and Ware-

house Co., 359 F.Supp. 214 (N.D. Miss. 1973); Skidmore

v. Travelers Ins. Co., 356 F.Supp. 670 (E.D. La.), aff'd

per curiam, 483 F.2d 67 (5th Cir. 1973).

Moreover, the enforcement scheme of the OSH Act

further indicates the congressional intent not to allow

7a

employees to bring an-action against a federal agency as

an employer. The Act establishes an elaborate enforce-

ment procedure in 29 U.S.C. § 659 that the Secretary of

Labor may use against an “employer.” However, the

term “‘employer’’ does not include the United States. 29

U.S.C. § 652(5). Therefore, although 29 U.S.C. § 668 (a)

does require federal agencies to ‘‘provide safe and health-

ful places and conditions of employment,” the Act

confers no authority upon the Secretary to take enforce-

ment action against federal agencies. The reason for this

is that the federal agency area is:one “in which ordinary

enforcement and pénalty provisions are hardly appli-

cable.” H.R. Rep. No. 90-1720, 90th Cong., 2d Sess.

20 (1968). If Congress did not intend the Secretary of

Labor to enforce the OSH Act against federal agencies,

then, a fortiori, Congress did not intend private litigants

to enforce the OSH Act against federal agencies. Accord-

ingly, the Court finds that the OSH Act does not create

a private right of action against federal agencies.

Il. PLAINTIFFS HAVE FAILED TO STATE A CLAIM

UPON WHICH RELIEF CAN BE GRANTED UNDER

‘THE FIRST AND FIFTH AMENDMENTS.

Plaintiffs contend that their first amendment right

to petition their government for redress of grievances

is infringed by the defendants’ failure to make safe

smoke-filled hallways, corridors, and meeting rooms.

Furthermore, plaintiffs argue that the defendants have

discriminated against them and denied them their life,

liberty, and property without due process of law in

violation of the fifth amendment.! The Court concludes

'The plaintiffs attempt to raise the Rehabilitation Act of 1973,

29 U.S.C. § 706, as a cause of action in their motion. However,

they did not assert this statute in their complaint. Even if it

{footnote continued]

8a

that the concerns plaintiffs address, though worthy of

consideration in another forum, should not be elevated to

a constitutional level. See Ely v. Velde, 451 F.2d 1130,

1139 (4th Cir. 1971) (environmental concerns are not

constitutionally protected).

The Court is persuaded by the well-reasoned opinion

of the Court in Gasper v. Loutstana Stadium and Expost-

tion District, 418 E.Supp. 716 (E.D. La, 1976), that

plaintiffs here have not stated a cause of action under the

Constitution. In Gasper, plaintiff nonsmokers sought to

enjoin the defendant fram continuing to allow tobacco-

smoking in the Louisiana Superdome. They claimed that

the defendant's “permissive attitude” toward smoking:

violated their constitutional right ‘to breathe smoke-free

air while in a State building.” 418 F.Supp.” at 717.

Plaintiffs alleged a violation. of tHe first amendment, in

that the’ presence of tobacco smoke created a chilling

effect on their right, to receive information™ In rejecting

this argument, the court observed that ‘there ‘was no |

attempt by the state to restrict anyone’s right to receiv

information or entertainment. Furthermore, the court

‘

were properly pleaded, the specific provision the plaintiffs cite is

inapplicable becayse it relates only to discrimination against the

handicapped in programs receiving federal financial assistance — not

federal agencies. Also, this Act does not, as plaintiffs concede,

expressly create a civil action for private litigants. Furthermore,

the statute that does clearly protect against discrimination on the

basis of a handicap in federal agencies, 5 U.S.C. § 7153, only

protects against an ‘‘adverse action"’ taken against an employee on

account of his handicap. See 5 C.F.R. §713.401 (1977). This

has been interpreted to ensure that handicapped individuals are

afforded “equal opportunity in both job assignment and promo-

tion.” See Ryan v. FDIC, 565 F.2d 762, 763 (D.C. Cir. 1977).

No such adverse personnel actions have been alleged in this case.

For all these reasons, the Court finds that the plaintiffs cannot re

on the Rehabilitation Act. ;

9a

noted, the presence of tobacco smoke had no more

chilling effect on the first amendment than the selling of

beer would have on those persons who refuse to attend

events where alcoholic beverages are sold. 418 F.Supp.

at 718.

The plaintiffs in Gasper also relied upon the fifth and

fourteenth amendments. They argued that the state was

depriving nonsmoking patrons of the Superdome,of their

life, liberty, angl property without due process of law.

Specifically, they asserted that the fifth amendment

. creates aright to be free from hazardous tobacco smoke

in State buildings.” Id, The court, relying upon Public

Utilities Commissiom v. Pollak, 343 U.S. 451, 72 S.Ct..

813, 96 L.Ed. 1068 (1952), rejected this argument.

_In Pollak, plaintiffs had! charged that broadcasts over

the loudspeakers of buses run by the-Capital J'ransit

Company, which operated pursuant to congressional

authorization, infringed upon their first and fifth amend-

mént rights., The Supreme Court there stated:

This position [that only one passenger-need object]

wrongly assumes that the Fifth Amendment secures

to each passenger 6n a public vehicle regulated by

the Federal Government a right of privacy substan-

tially equal to the privacy to which he is entitled

in his owrf home. However complete his right of

privacy may be at home, it is substantially limited

by the rights of others when its possessor travels

on a public thoroughfare or rides in a public con-

veyance. * * * The Federal Government in its

regulation of them~is not only entitled, but is

required, to take into consideration the interests of

all concerned. * * * The protection afforded to the

liberty of the individual by the Fifth Amendment

against the action of the Federal Government does

not go that far. The liberty of each individual in a

10a

public vehicle or public place is subject to reason-

able limitations in relation to the rights of others,

344 U.S, at 464, 465, 72 S.Ct. at 821. Consistent with

the Supreme Court's language, the Gasper court con-

cluded that;

the courts have never seriously considered the right

to a clean environment to be constitutionally

protected under the Fifth and Fourteenth Amend-

ments, It is well established that the Constitution

does not provide judicial remedies for every secial

and economic ill, Lindsey v, Nermet, 405 U,S, 56,

92 8,.Ct, 862, 31 L,Ed,2d 36 (1972), Accordingly,

if this Court were to recognize that the Fifth and -

Fourteenth Amendments provide the judicial means

to prohibit smoking, it would be creating a legal

avenue, heretofore: unavailable, through which an

individual could attempt to regulate the social habits

of his neighbor, This Court is not prepared to

accept the proposition that life-tenured members of

the federal judiciary should engage in such basic

adjustments of individual behavior and liberties,

* * *

For the Constitution to be read to protect non-

smokers from inhaling tobacco smoke would be to

broaden the rights of the Constitution to limits

heretofore unheard of, and to engage in that type

of adjustment of individual liberties better left to

‘the people acting through legislative processes,

418 F.Supp. at 721-22, See Hagedorn v, Union Carbide

Corp,, 363 F.Supp. 1061 (N.D, W.Va, 1973) (no consti-

tutional cause of action for complaint alleging that

emissions were fouling the air); Environmental Defense

Fund, Inc, v, Corps of Engineers of United States Army,

325 F.Supp, 728 (E.D, Ark, 1971) (no constitutional

cause of action for complaint seeking damages as a result

lla

;

of exposure to air pollutants emitted from petroleum

refineries),

This Court finds the facts of Gasper indistinguishable

and will adopt its approach, Without in any way deni-

grating the importance of plaintiffs’ environmental

concerns, the Court firmly believes that such matters are

better left to the legislative or administrative process,

where a proper balancing of interests can be made in a

forum where guch social decisions can more appropriately

be made, Accordingly, the Court finds that plaintiffs

have failed to state a claim upon which relief can be

granted under the first’ and fifth amendments to the

Constitution, ’

¢

Mil, ASSUMING THAT A’ COMMON LAW CAUSE OF

ACTION EXISTS, THIS COURT MAY LACK

JURISDICTION TO HEAR SUCH A CLAIM, '

Fhe plaintiffs contend that the defendants have

breached their common-law duty to provide employees

with a safe place to work, See Shimp v, New Jersey Bell

Telephone Co., 145 N.J, Super. 516, 368 A,2d° 408

(1976), The defendants respond that where, as here, a

federal employee asserts a claim against his employer, the

United States, his exclusive remedy lies under the Federal

Employees’ Compensation Act, 5 U.S.C, §§ 8101, et seq.

Without deciding this issue,*? the Court notes that even if

2 Defendants rely upon 5 U.S.C, §8116(c) which reads:

(c) The liability of the United States or an instrumentality

thereof under this subchapter or any extension thereof with

respect to the injury or death of an employee is exclusive

and instead of all other liability of the United States or the

instrumentality to the employee , . . otherwise entitled to

recover damages from the United States or the instrumen-

y [footnote continued |

L2a

plaintiffs have a common-law action, this Court may lack

jurisdiction to hear such claim. Therefore, the Court will

order both sides to brief fully the issue of whether this

Court has jurisdiction over such a common-law claim.

IV. CONCLUSION

The Court finds that plaintiffs have failed to state a

cause of action under the Occupational Safety and Health

Act of 1970, and have failed to state a claim upon which

relief can be granted under the first amendment and the

fifth amendment to the Constitution. Furthermore, the

Court will withhold ruling upon the common-law claim

until the issue is more fully briefed, pursuant to this

Court’s Order.

An Order in accordance with the foregoing will be

issued of even date herewith.

a

tality because of the injury or death in a direct judicial

proceeding, in a civil action, or in admiralty, or by an admin-

_ istrative or judicial proceeding under a workmen's compen-

sation statute or under a Federal tort liability statute.

Although the Court will not decide this issue at this time, the

Court notes that this provision appears only to apply to damage

suits—not injunctive actions, as the one here. Congress’ intent in

enacting this law was to “provide adequate, fixed recoveries to

its employees . . . [by] by paying substantial damages to [the

government's] injured employees.” See Galimi v. Jetco, Inc., 514

F.2d 949, 952-53 (2d Cir. 1975). Therefore, it would seem that

the Federal Empioyees’ Compensation Act would not preclude this

action which seeks merely injunctive relief.

13a

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action 77-1059

[Filed April 28, 1978]

FEDERAL EMPLOYEES FOR NON-SMOKERS’

RIGHTS (FENSR), et al.,

Plaintiffs,

oe «(«CU:«

UNITED STATES OF AMERICA, et al.,

Defendants.

ORDER

Pursuant to this Court’s Memorandum Opinion! issued

on March 1, 1978, the parties have submitted memoranda

on the issue of whether this Court lacks jurisdiction to

hear plaintiffs’ common law claim. Plaintiffs assert two

bases for jurisdiction: (1) 28 U.S.C. § 1331 and (2) 28

U.S.C. § 1361. ‘

(1) Section 1331 of Title 28 of the United States

Code confers jurisdiction upon district courts for cases

arising under the “laws . .. of the United States.” Plain-

IThe Court notes that nothing in its Memorandum Opinion

should be construed as addressing the issue of whether the Occupa-

tional Safety and Health Act of 1970 precludes judicial review of

agency action. The Opinion only resolved the issue of whether

the OSH Act created a private cause of action.

l4a

tiffs argue that the term “‘laws”’ includes federal common

law and that the federal government’s common-law duty

to protect the health of employees? is a federal common-

law duty. Upon consideration of the relevant authorities,

the Court finds that the duty of the federal government

to protect the health of their employees is not part of

the federal common law. Courts have “developed” the

federal common-law doctrine for those issues in which

the federal interest is so strong that they are appropri-

ately resolved on the basis of a uniform judge-made

federal law, rather than on the basis of varying state laws.

See Molton, Allen & Williams, Inc. v. Harris, 436 F.Supp.

853, 857 (D.D.C. 1977); 13 C. Wright and A. Miller,

Federal Practice & Procedure 3563, at 422 (1975). No

such federal interest can be found here: Although uni-

formity among states may be desirable, there is no

necessity that a federal employer’s duty to its employees,

in different states be decided by a uniform standard. The

federal government in this case is involved not as the

government gua government—but, rather, as an employer.

As such, the interest in uniformity among federal agencies

in different states is no greater than the same interest as

it would apply to a private employer with branches of his

business in different states. Accordingly, the duty of

federal government to protect the health of its employees

is not appropriately made a part of the federal common

law, and, therefore, this Court lacks jurisdiction over this

cause of action asserted under 28 U.S.C. § 1331.

(2) Section 1361 of Title 28 of the United States

Code confers jurisdiction upon federal courts in the

2For the purposes of this Order, the Court will assume, without

deciding, that the complaint sets forth facts giving rise to a

common-law duty of employers.

l5a

,

nature of mandamus to compel an officer of the United

States to perform a duty owed to a plaintiff. Plaintiffs

argue that the defendants owe them a common-law duty

(as opposed to a federal common-law duty) to provide a

safe and healthful work environment and that this case

secks to compel the defendants to perform this duty.

Mandamus jurisdiction will lie only when the duty

prescribed arises from a statute or constitutional pro-

vision. Cf. Mattern v. Weinberger, 519 F.2d 150, 156

n.10 (3d Cir. 1975), vacated on other grounds, 425 U.S.

987 (1976). Because of this Court’s resolution of plain-

tiffs’ statutory and constitutional arguments, plaintiffs

here can rely only upon a common-law duty and, there-

fore, § 1361 does not confer jurisdiction upon this Court.

It is, therefore, by the Court, this 27th day of April,

1978,

ORDERED, that plaintiffs’ motion for summary judg-

ment be, and the same hereby is, denied as to the first

cause of action enumerated in the complaint; and it is

FURTHER ORDERED, that defendants’ motion for

judgment on the pleadings be, and the same hereby. is,

granted as to the first cause of action enumerated in the

complaint; and it is

FURTHER ORDERED, that because of this Order

and Memorandum Opinion issued on March 1, 1978, this

case be, and the same hereby is, dismissed, with prejudice,

and it is “

FURTHER ORDERED, that each party shall bear its

own costs in obtaining this judgment.

/s/ Charles R. Richey

United States District Judge

Alabama

Alaska

Arizona

Arkansas

California

Colorado

Connecticut

Delaware

District of

Columbia

Florida

Georgia

Hawaii

Idaho

Illinois

16a

APPENDIX E

Woodward Iron Company v. Craig

53 So.2d 586, 256 Ala. 37 (1951)

Allen v. Knights Island Consol. Copper Co.

3 Alaska 651 (1909)

Robles v. Preciado

79 P.2d 504, 52 Ariz. 113 (1938)

Norris v. Daves

470 S.W. 2d 937, 251 Ark. 101 (1971)

Alber v. Owens

427 P.2d 781, 59 Cal. Rptr. 117 (1967)

Williams v. Sleepy Hollow Mining Co.

86 P. 337, 37 Colo. 62 (1906)

Rescigno v. Rosner

198 A. 751, 124 Conn. 253 (1938)

Finsaw v. Garstin

177 A.2d 636 (1962)

Decatur v. Chas. H. Thompkins Co.

58 App. D.C. 102, 25 F.2d 526 (1928)

Hicks v. Kemp

79 So.2d 696 (1955)

Holland v. McRae Oil & Fertilizer Co.

68 S.E. 555, 134 Ga. 678 (1910)

Michael v. Valdastri, Ltd.

575 P.2d 1299 (1978), 59 H. 53

Deshazer v. Tompkins

404 P.2d 604, 89 Idaho 347 (1965)

Mueller v. Elm Park Hotel Co.

75 N.E.2d 314, 398 Ill. 60 (1947)

Indiana

lowa

Kansas

Kentucky

Louisiana

Maine

Maryland

Massachusetts

Michigan

Minnesota

Mississippi

Missouri

Montana

Nebraska

Nevada

17a

U.S. Cement Co. v. Cooper

88 N.E. 69, 172 Ind. 599 (1909)

Davis v. Crook

261 N.W.2d 500 (1978)

Uhlrig v. Shortt

397 P.2d 321 (1964), 194 Kan. 68

Burdette v. Thompson

420.S.W.2d 548 (1967)

Cambre v. White Castle Lumber Co.

81 So. 256, 144 La. 699 (1919)

Efickson v. Monson Consol. Slate Co.

60°A. 708, 100 Me. 107 (1905)

Harrison v, Harrisqn

285 A.2d 590, 264 Md. 184 (1972)

Reidy v. Crompton & Knowles Loom Works

60 N.E.2d 589, 318 Mass. 135 (1945)

Dehtiar v. Mietkowski

127 N.W.2d 388 (1964)

Baumgartner v. Holslin

52 N.W.2d 763,236 Minn. 235 (1952)

Long v. Woollard

163 So. 2d 698 (1964), 249 Miss. 722

Hightower v. Edwards

445 S.W.2d 273 (1969)

Pollard v. Todd,

418 P.2d 869, 148 Mont. 171 (1966)

Lownes v. Furman

71 N.W.2d 661, 161 Neb. 57 (1955)

Pershing Quicksilver Co. v. Thiers

152 P.2d 432, 62 Nev. 382 (1944)

New

Hampshire

New Jersey

New Mexico

New York

North

Carolina

North Dakota

Ohio

Oklahoma

Oregon

Pennsylvania

Rhode Island

South

Carolina

South Dakota

18a

Moore v. Morse & Mailoy Shoe Co.

197 A. 707, 89 N.H. 332 (1938)

Clayton v. Ainsworth

4 A.2d 274, 122 N.J.L. 160 (1939)

Padilla v. Winsor

354 P.2d 740, 67 N.M. 267 (1960)

Maleeny v. Standard Shipbuilding Corp.

142 N.E. 602 (1923), 237 NY. 250

(1923)

Jones v. Douglas Aircraft Co.

112 S.E.2d 257, 251 N.C. 832 (1960)

Abelstadt v. Johnson

170 N.W. 619, 41 N.D. 399 (1919)

Lee v. Smith

42 Ohio St. 458, 51 Am. Rep. 839

(1884)

Serdinak v. Overland Transp. Co.

181 N.E.2d 474 (Ohio App. 1961)

McClendon v. McCall

481 P.2d 756 (1971)

Concannon v. Oregon Portland Cement Co.

447 P.2d 290, 252 Or. 1 (1968)

Jerdon v. Sirulnik

162 A.2d 202, 400 Pa. 423 (1960)

Faltineli v. Great American Atlantic &

Pacific Tea Co., 182 A. 605, 55 R.I.

438 (1936)

Morgan v. Roper

157 S.E.2d 572, 250 S.C. 280 (1967)

Smith v. Community Co-Op Association

of Murdo, 209 N.W. 2d 891 (1973)

-

Tennessee

Texas

Utah

Vermont

Virginia

Washington

West Virginia

Wisconsin

Wyoming

19a

Virginia Iron, Coal & Coke Co. v. Hamilton

65 N.W. 401, 107 Tenn. 705 (1901)

Forley v. MM Cattle Co.

529 S.W.2d 751 (1975)

Speight v. Rocky Mountain Bell

Telephone Co., 107 P. 742, 36 Utah

483 (1910)

Landing v. Town of Fairlee

* 22 A.2d 179, 112 Vt. 127 (1941)

Colonna Shipyard v. Bland

,.143 S.E. 729, 150 Va. 349 (1928)

Guy v. Northwest Bible College

390 P.2Zd 708 (1964), 64 W. 116

Bates v. Sirk : *

230 S.E.2d 738 (1976)

Gordon v. Schultz Savo Stores, Inc.

196 N.W.2d 633, 54 Wis.2d 692 (1972)

Mellor v. Ten Sleep Cattle Co.

550 P.2d 500 (1976)