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FEDERAL EMPLES. v. UNITED STATES

March 1, 1978

FEDERAL EMPLOYEES FOR NON-SMOKERS' RIGHTS (FENSR), et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, et al., Defendants



The opinion of the court was delivered by: RICHEY

 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, 3, and 4 of the complaint. The Court concludes that further briefing is required as to Count 1.

 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 injunctive 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.

 Plaintiffs argue that 29 U.S.C. § 668(a) of the OSH Act requires federal agencies to "provide safe and healthful 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. 453, 38 L. Ed. 2d 646, 94 S. Ct. 690 (1974); J.I. Case Co. v. Borak, 377 U.S. 426, 12 L. Ed. 2d 423, 84 S. Ct. 1555 (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 supersede, or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any manner the common law or 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.

 29 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); 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); Hare v. Federal Compress and Warehouse 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 employees to bring an action against a federal agency as an employer. The Act establishes an elaborate enforcement 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 healthful places and conditions of employment," the Act confers no authority upon the Secretary to take enforcement action against federal agencies. The reason for this is that the federal agency area is one "in which ordinary enforcement and penalty provisions are hardly applicable." 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. Accordingly, the Court finds that the OSH Act does not create a private right of action against federal agencies.

 II. 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. *fn1" The Court concludes 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. Louisiana Stadium and Exposition District, 418 F. 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 from 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 receive information or entertainment. Furthermore, the court 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 and property without due process of law. Specifically, they asserted that the fifth amendment creates a "right to be free from hazardous tobacco smoke in State buildings." Id. The court, relying upon Public Utilities Commission v. Pollak, 343 U.S. 451, 96 L. Ed. 1068, 72 S. Ct. 813 (1952), rejected this argument. In Pollak, plaintiffs had charged that broadcasts over the loudspeakers of buses run by the Capital Transit Company, which operated pursuant to congressional authorization, infringed upon their first and fifth amendment rights. The Supreme Court there stated:

 
This position [that only one passenger need object] wrongly assumes that the Fifth Amendment secures to each passenger on a public vehicle regulated by the Federal Government a right of privacy substantially equal to the privacy to which he is entitled in his own 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 conveyance. * * * 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 ...

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