Opposition — Federal Employees for Non-Smokers' Rights v. United States

Supreme Cound, U,

FILED

SEP 26 I979

No. 79-147

neem anne megernn JR., CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

FEDERAL EMPLOYEES FOR NON-SMOKERS’

RIGHTS, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.

*

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

WADE H. McCREE, JR.

Solicitor General

ALICE DANIEL

Acting Assistant Attorney General

ELOISE E. DAVIES

LINDA JAN S. PACK

Attorneys

Department of Justice

Washington, D.C. 20580

Page

Nee wanpececcsnes 1

Jurisdiction .............. cdlahibienisieneicninis 2

Questions presented 2.0.22... .....eeececeececeeeeeeeeeceeeee 2

ES SLE AES an 2

Argument | peeiretnetaetsiensseiesneninerneesedasenesnesanenasecasenss 3

Conclusion RUAN Nintilldiieitieibestnisdhnnnandesencnnanes 10

CITATIONS

Cases: ier

Buhler v. Marriott Hotels, Inc., 390 F.

Supp. 399 2s... ae a 8

Byrd v. Fieldcrest Mills, Inc., 496 F.2

I Shtehiaieesctigsn a SE SIRES 8

Cannon v. University of Chicago, No.

77-926 (May 14, 1979) 0... 4,5

Cort v. Ash, 492 US. 66 .......................... 4,5

Fawvor v. Texaco, Inc., 387 F. Supp. 626,

rev'd on other grounds, 546 F.2d 636.... 8

Hare v. Federal Compress and Warehouse

8

Co., 359 F. Supp. 214 ...............

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

NES ANE roads 9

Jeter v. St. Regis Paper Co., 507 F.2d

a hs iarinttcnaconchrictiieninndiiblipeatidce 8

Marshall v. Whirlpool Corp., 598 F.2d

715, pet. for cert. pending, No. 78-

1870 8

National Railroad Passenger Corp. v. Na-

tional Ass’n of Railroad Passengers,

RN A aia cca esis

af

II

Cases—Continued Page

Russell v. Bartley 494 F.2d 384 00000000000... 8

Skidmore v. Travelers Ins. Co., 356 F.

Supp. 670, aff’d, 483 F.2d 67 2.000000... 8

Soriano v. United States, 352 U.S. 270 .... 4

Textile Workers v. Lincoln Mills, 353 U.S.

RIEL ES A Rgrne eee et ONE oh es ee 9

Touche Ross & Co. v. Redington, No.

78-309 (June 18, 1979) oo... 4,5,7

United States v. King, 395 U.S. 1 o00000..... 4

United States v. Sherwood, 312 U.S. 584.. 3, 4

United States v. Testan, 424 U.S. 392 .... 3

Constitution, statutes, and rule:

United States Constitution:

First Amendment .00...0...0..00..00..0000000000- 2,3

Pitt AMONGMONE 0a. ncccccccccccncscsesese 2,3

Occupational Safety and Health Act of

1970, 29 U.S.C. 651 et seq.:

BP Ss REE nacdscanssesnsteiocsannbevonines 6

BO Aas GPO von cetsccceccicoccccscenseons 6

BO UE, COBB) concnccicnccsncecesnscsacee 3, 4, 5, 6

if... _. ene 8,9

Be Fa ins ene txoccesieringnctimsaicbitpdiccins 9

BO OPT, POPC TGC oan ccccccccccsccccceasaniccesss 6

Miscellaneous:

44 Fed. Reg. 22464 (1979), revising 41

C.F.R. 101-20.109-10 oon. eccccccccccceeseeee 6

GSA Bulletin FPMR D-1438, 41 Fed. Reg.

soci dealt ba) RON MRAP oo sso 5

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

III cbunsciainepeccleteeliliaaia es 5

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 79-147

FEDERAL EMPLOYEES FOR NON-SMOKERS’

RIGHTS, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

id

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The judgment order of the court of appeals (Pet.

App. la-2a) is not reported. The opinion of the

district court entered on March 1, 1978 (Pet. App.

4a-12a) is reported at 446 F.Supp. 181. The order

entered by the district court on April 28, 1978 (Pet.

App. 18a-15a) is not reported.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered

on May 2, 1979. A petition for rehearing was denied

on May 30, 1979 (Pet. App. 3a). The petitiorr for a

writ of certiorari was filed on July 30, 1979. The

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

1254(1).

QUESTIONS PRESENTED

1. Whether the Occupational Safety and Health

Act of 1970 (OSHA) provides a private right of

action for declaratory and injunctive relief against

federal employers.

2. Whether the district court properly dismissed

petitioners’ common law claim for lack of jurisdic-

tion.

STATEMENT

Petitioners are several groups opposed to smoking

and various non-smokers employed by the federal

government. They seek declaratory and injunctive

relief restricting tobacco smoking to designated work

areas in all federal facilities, leaving other work

areas free of tobacco smoke for the benefit of non-

smoking employees. Petitioners asserted four causes

of action in the district court based on: (1) the Occu-

pational Safety and Health Act of 1970 (OSHA);

(2) the First Amendment; (3) the Fifth Amend-

ment; and (4) the common law duty of an employer

to provide a healthful and safe work place.

3

The district court, on cross motions for summary

judgment and judgment on the pleadings, dismissed

petitioners’ complaint. The court held that OSHA

does not provide federal employees with a private

right of action against their employer (Pet. App.

5a-7a) and that petitioners failed to state a claim

upon which relief could be granted under either the

First or Fifth Amendments (id. at 7a-1la).’ The

court also requested further briefing on the issue of

its jurisdiction to consider petitioners’ common law

claim. Subsequently, the court held that it lacked

jurisdiction to hear the common law claim and dis-

missed that portion of petitioners’ complaint (id. at

13a-15a).

The court of appeals affirmed by judgment order

for the reasons stated in the district court’s opinion

(Pet. App. la-2a).

ARGUMENT

1, Petitioners contend (Pet. 5-12) that OSHA,

specifically 29 U.S.C. 668(a), contains an implied

private right of action for declaratory and injunctive

relief against the federal government for unhealthful

working conditions. This contention is without merit.

First, it is well established that sovereign im-

munity prevents the United States from being sued

without its consent. United States v. Testan, 424

U.S. 392, 399 (1976); United States v. Sherwood,

1 Petitioners have not sought review here of the dismissal

of their constitutional claims.

4

312 U.S. 584, 586 (1941). This consent will not be

implied but must be “unequivocally expressed.”

United States v. King, 395 U.S. 1, 4 (1969); Soriano

v. United States, 352 U.S. 270, 276 (1957). Nothing

in the language or legislative history of Section

668(a) suggests that Congress intended to waive the

government’s sovereign immunity.

Petitioners also cannot maintain this action against

the other federal defendants. Clearly, OSHA does

not expressly create a private cause of action. Thus,

in determining whether the statute impliedly creates

a private cause of action, the courts must consider

the factors identified in Cort v. Ash, 422 U.S. 66

(1975), and further discussed in Cannon v. Uni-

versity of Chicago, No. 77-926 (May 14, 1979), and

Touche Ross & Co. v. Redington, No. 78-309 (June 18,

1979). An assessment of these factors indicates that

the district court correctly refused to find a cause of

action implied in OSHA on behalf of petitioners.

The first factor identified in Cort is whether the

plaintiff belongs to a class for whose special benefit

the statute was enacted. OSHA is unquéstionably

intended for the protection of employees, but that

fact alone does not suggest the existence of a private

right of action. See National Railroad Passenger

Corp. v. National Ase’n of Railroad Passengers, 414

U.S. 453, 457-458 (1974). As the Court emphasized

in Cannon (slip op. 11 n.13), and Touche Ross & Co.

(slip op. 8), a court must look at the right- or duty-

creating language of the statute in determining

whether a private cause of action is implicit. In con-

trast to the cases relied on in Cannon (slip op. 11-13

5

n.13), the language of 29 U.S.C. 668(a) does not

confer any rights on federal employees. Rather, it

directs federal agencies to establish an occupational

health and safety program. Congress’ phrasing of

the statute in this manner, as “a simple directive” to

agency heads, strongly indicates its intent not to cre-

ate a private remedy. See Cannon v. University of

Chicago, supra, slip op. 14-15 n.14; Touche Ross &

Co. v. Redington, supra, slip op. 8.

The other Cort factors point in the same direction.

See Cort v. ‘Ash, supra, 422 U.S. at 78.- Petitioners

do not claim that anything in the legislative history

of OSHA supports their/ontention (Pet. 8-9). In

fact, the legislative history and the entire statutory

scheme are decidedly to the contrary. Congress con-

sidered and rejected the idea of applying the enforce-

ment system established for private employers to

federal agencies, choosing instead to direct the agen-

cies to establish their own safety programs and spe-

cifically notjng that federal employment “is an area

in which erdinary enforcement and penalty provisions

are hardly applicable.” H.R. Rep. No. 1720, 90th

Cong., 2d Sess. 20 (1968).?

?Even though not subject to OSHA’s enforcement proce-

dures, the federal government has not taken its employee

safety responsibilities lightly. The General Services Admin-

istration has provided direction to agencies whose buildings

it maintains in the form of guidelines entitled “Smoking in

GSA Controlled Buildings and Facilities,’ GSA Bulletin

FPMR D-148, 41 Fed. Reg. 44476 (1976). In addition, GSA

has recently promulgated regulations, effective April 16,

1979, restricting smoking in federal facilities so as “to pro-

-

6

This careful distinction drawn by Congress ve-

tween private sector and federal employment is an

important component of the OSHA statutory scheme,

the purpose of which is to provide guarantees of em-

ployee safety and health through appropriate stand-

ards and enforcement. In providing these guaran-

tees, Congress particularized the responsibilities of

federal agencies in 29 U.S.C. 668(a), a provision

separate and distinct from the remainder of OSHA,

and deliberately refused to subject federal agencies

to the coercive compliance measures that are applica-

ble to private employers under 29 U.S.C. 657-659.’

The manner in which agencies carry out their duties

under OSHA is a matter of discretion.‘ Since Con-

gress thus placed the government in a distinct, non-

coerced position in the OSHA statutory scheme, it

seems clear that Congress did not contemplate the ex-

vide a reasonably smoke-free environment in certain areas

for those working and visiting in GSA-controlled buildings.”

44 Fed. Reg. 22464 (1979), revising 41 C.F.R. 101-20.109-10.

The Department of Defense has issued its own instructions

concerning the control of smoking (No. 6015.18, August 18,

1977, Attachment to Trial Record No. 18), as has the Depart-

ment of Health, Education, and Welfare (General Adminis-

tration Manual, Ch. 1-60, Addendum to Brief for Appellees in

court of appeals).

® The enforcement provisions of OSHA apply to “employ-

ers,” a defined term that explicitly excludes the United

States. 29 U.S.C. 652(5).

*The Secretary of Labor has promulgated guidelines for

the implementation of OSHA by federal agencies. 29 C.F.R.

Part 1960.

a

7

posure of federal agencies to private suits by their °

employees based on mandatory OSHA obligations.

Finally, the subject matter addressed by OSHA

indicates that a private federal remedy would be

inappropriate. Employee health and safety have his-

torically been subjects of state rather than federal

concern, as shown by state tort law and workmen’s

compensation programs. As petitioners note (Pet.

18), all 50 states and the District of Columbia recog-

nize a ‘duty of employers tv provide a safe place of ©

employment. “The decision of Congress to establish

rules and: provide bepefits for federal employees does

not alter the fact that employment conditions are

basically of concern to the states.’ In Cannon, in con-

trast, the statute dealt with an area traditionally

covered by federal law, the prevention of invidious

discrimination. Slip op. 29.

Petitioners’ contention (Pet. 13-17) that the

circuits are divided on the issue raised by this

case is incorrect. No court has recognized a private

right of action under OSHA, In Rambeau v. Dow,

553 F.2d 32 (7th Cir. 1977), the court did not ad-

5 Petitioners assert (Pet..12) that a federal right of action

is necessary because the Supremacy Clause bars state court

injunctive or declaratory relief against the federal govern-

ment as an employer. But the “necessity” of implying a fed-

eral remedy is irrelevant to the central inquiry, the intent

of Congress. Touche Ross & Co. v. Redington, supra, slip

op. 14-15. In this case, Congress did not intend to imply a

private right of action against federal employers under

OSHA. Thus, petitioners have the same options that they had

before the passage of OSHA.

8

dress the question of an implied private remedy under

the statute. In Marshall v. Whirlpool Corp., 593 F.2d

715 (6th Cir. 1979), pet. for cert. pending, No. 78-

1870, the court simply upheld the validity of a gov-

ernment regulation that limits the right of employers

to discharge employees who refuse to work because of

dangerous conditions. In reaching that conclusion, the

Sixth Circuit cited approvingly its earlier decision in

Russell v. Bartley, 494 F.2d 3384 (1974), that no pri-

vate cause of action arises under OSHA. 593 F.2d at

725 n.22. In fact, every court that has considered the

issue has agreed that OSHA does not crexte a private

remedy for unsafe or unhealthful working conditions.

See Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323

(4th Cir. 1974); Russell v. Bartley, supra; Buhler

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

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

(E.D. Tex. 1975), rev’d on other grounds, 546 F.2d

636 (5th Cir. 1977) ; Skidmore v. Travelers Ins. Co.,

356 F.Supp. 670 (E.D. La.), aff’d, 488 F.2d 67 (5th

Cir. 1973). See also Jeter v. St. Regis Paper Co.,

507 F.2d 973 (5th Cir. 1975); Hare v. Federal Com-

press and Warehouse Co., 359 F. Supp. 214 (N.D.

Miss. 1973).

2. Petitioners challenge (Pet. 18-24) the district

court’s determination that it lacked jurisdiction to

hear their common law claim. Petitioners assert

(Pet. 21-24) that jurisdiction exists under 28 U.S.C.

1331 because their claim involves an issue of federal

AO Aaa

9

common law.’ As the district court noted (Pet. App.

14a), however, the issue presented by petitioners is

not of unique federal concern and does not require a

uniform federal rule. The federal government’s in-

volvement in this case is simply as an employer. “As

such,” the district court observed, “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” (ibid.). The areas in which the

Court has developed a federal common law have in-

volved a complicated federal regulatory scheme, where

federal judge-made l4w is necessary to fill the in-

terstices of the statutéry framework. See Illinois v.

City of Milwaukee, 406 U.S. 91 (1972); Textile

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

is not the case here. Hence, petitioners’ common law

claim does not present a federal question, and the

district court was without jurisdiction to hear it un-

der 28 U.S.C. 1331.

* Petitioners’ attempt to invoke the mandamus jurisdiction

of the district court under 28 U.S.C. 1861 (Pet. 4) was prop-

erly rejected by the district court (Pet. App. 14a-15a) and

apparently is not renewed here.

10

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. McCRrEE, JR.

Solicitor General

ALICE DANIEL

Acting Assistant Attorney General

ELOIsE E. DAVIES

LINDA JAN S. PACK

Attorneys

SEPTEMBER 1979

W ou. s. covernmant paintine orrice; 1979 so1s6s 91