                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-1995

Mitchum v. Hurt
Precedential or Non-Precedential:

Docket 94-3358




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Recommended Citation
"Mitchum v. Hurt" (1995). 1995 Decisions. Paper 327.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/327


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           UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ____________

                    No. 94-3358
                    ____________

      KENNETH L. MITCHUM, DEBORAH L. WEBB,
      STEVEN J. KRUMHOLZ, COLLEEN M. EVANS,
     for themselves in their own right, and
     on behalf of employees and patients of
       the Veterans Administration Center,
                 Highland Drive,

                     Appellants

                         v.

        REEDES HURT, DANIEL P. VAN KAMMEN,
        DENNIS M. LEWIS, JANIS A. DOMZAL,
      VALERIE DELISE, PAMELA JACKSON-MALIK,
                ROBERT PICIRELLI,

                      Appellees

                ____________________

 ON APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE WESTERN DISTRICT OF PENNSYLVANIA
             (D.C. Civ. No. 93-00204)
               ____________________

              Argued: January 12, 1995
Before:   COWEN, NYGAARD, and ALITO, Circuit Judges

          (Opinion Filed: December 29, l995)

                ____________________

                        JON PUSHINSKY, ESQ. (Argued)
                        MICHAEL L. ROSENFIELD, ESQ.
                        1808 Law & Finance Bldg.
                        Pittsburgh, PA 15219

                        Counsel for Appellants

                        FREDERICK W. THIEMAN
                        United States Attorney


                          1
                               MICHAEL L. IVORY (Argued)
                               Assistant U.S. Attorney
                               633 U.S. Post Office & Courthouse
                               Pittsburgh, PA 15219

                               Counsel for Appellees

                        ____________________

                        OPINION OF THE COURT
                        ____________________


ALITO, Circuit Judge:


          This is an appeal by three current or former employees

of the Veterans Administration Medical Center ("VAMC") in

Pittsburgh, who filed an action against VAMC administrators,

claiming, among other things, that the administrators had

violated the employees' First Amendment rights by retaliating

against them for making statements intended to secure

improvements for VAMC patients.       The employees sought injunctive

and declaratory relief for these alleged constitutional

violations but no damages.   The district court granted summary

judgment for the defendants on these claims, holding that under

Bush v. Lucas, 462 U.S. 367 (1983), the plaintiffs could not
assert such claims in federal court but were instead required to

pursue available administrative remedies.       Because Bush and the

other Supreme Court decisions on which the defendants rely

concern the recognition of non-statutory damages remedies rather

than injunctive and declaratory relief, we reverse.




                                  2
                                  I.

           The three appellants in this case are Kenneth L.

Mitchum, previously Chief of Medical Services of the VAMC1;

Deborah L. Webb, Assistant Chief Nurse for Special Projects; and

Steven J. Krumholz, Staff Assistant to the Associate Director.

All three appellants could have pursued administrative remedies

to vindicate the alleged violations of their First Amendment

rights.

           Krumholz enjoyed the protection of the Civil Service

Reform Act of 1978 (CSRA), Pub. L. 95-454 (codified at various

sections of Title 5 U.S.C.), and the Whistle-Blower Protection

Act of 1989, Pub. L. 101-12 (codified at various sections of

Title 5 U.S.C.).    Under the CSRA, retaliation against a "whistle-

blower" is a prohibited personnel practice."     5 U.S.C.

§2302(b)(8).     An allegation of a "prohibited personnel practice"

may be submitted to the Office of Special Counsel (OSC) of the

Merit System Protection Board (MSPB).2    5 U.S.C. §§ 1212(a)(2),

1214(a)(1)(A).    The OSC must investigate such an allegation and

determine "whether there are reasonable grounds to believe that a

prohibited personnel practice has occurred, exists, or is to be

taken."   5 U.S.C. § 1214(a)(1)(A).    If the OSC determines that no

1
 Mitchum left the Veterans Administration before this appeal was
argued, but he claims that he continues to be harmed by the
presence in his personnel file of allegedly false and misleading
statements concerning events at issue in this action. He seeks
the removal of these statements from his file. All parties take
the position that Mitchum's claims are not moot, and we agree.
2
 Krumholz began to use these procedures by filing an
administrative complaint, but his complaint was dismissed under
29 C.F.R. § 1614.107(c) because the district court action had
already been commenced and was still pending.


                                  3
such grounds exist, the person who submitted the allegation must

be notified.   5 U.S.C. § 1214(a)(2)(A).      While the investigation

continues, the OSC must periodically notify the person who made

the allegation of its status.    5 U.S.C. § 1214(a)(1)(C).    If the

OSC determines that there are reasonable grounds to believe that

the prohibited personnel action was or is to be taken, the OSC

may petition a member of the MSPB for a stay and may recommend

"corrective action" to the agency involved, the MSPB, and the

Office of Personnel Management.       5 U.S.C.

§1214(b)(1)(A)(i),(2)(B).    The OSC may also recommend

disciplinary action against an employee who is reasonably

believed to have committed a prohibited personnel practice.      5

U.S.C. §1215(a)(1)(A).

          Where the allegation submitted to the OSC concerns

retaliation for whistle-blowing, review by the MSPB is always

available.   If the OSC notifies the person making the allegation

that the investigation has been terminated or if the OSC does not

notify this person within 120 days that corrective action will be

taken, the person may seek corrective action from the MSPB (5

U.S.C. §§ 1214(a)(3), 1221(a)), and the MSPB may issue a stay and

order "such corrective action as [it] considers appropriate."        5

U.S.C. § 1214(b)(4)(A).    A final order or decision of the MSPB is

subject to judicial review in the United States Court of Appeals

for the Federal Circuit.    5 U.S.C. §§ 1221(h), 7703(b).

          Mitchum and Webb were appointed to their positions

under 38 U.S.C. §7401(1) and were subject to a different

statutory scheme.   Under this scheme, the most extensive review


                                  4
is available in a case involving a "major adverse action" based

on "conduct or performance."    The term "major adverse action" is

defined as including a suspension, transfer, reduction in grade

or basic pay, or discharge.    38 U.S.C. § 7461(c)(2).   A question

of professional conduct or competence is defined as a question

involving "[d]irect patient care" or "[c]linical competence."        38

U.S.C. § 7461(c)(3).   In a case concerning a "major adverse

action" based on "conduct or performance" or in a so-called

"mixed case" -- i.e., one involving both a "major adverse action"

based on "conduct or performance" and other adverse actions (see

38 U.S.C. § 7462(a)(3)) -- the appointee may appeal to a

Disciplinary Review Board (DAB).     38 U.S.C. § 7462(a).   After the

DAB renders a decision, the Secretary may, pursuant to that

decision, "order reinstatement, award back pay, and provide such

other remedies as the Board [finds] appropriate . . ., including

expungement of records relating to the action."     38 U.S.C.

§7462(d)(1).   An appointee adversely affected by a DAB decision,

as reviewed by the Secretary, may obtain judicial review.       38

U.S.C. § 7462(f)(1).

          Grievances not involving a "major adverse action" based

on "conduct or performance" or a "mixed case" proceed through

internal VA administrative channels or those specified in an

applicable collective bargaining agreement.     38 U.S.C.

§§7461(b)(2), 7463.3

3
Neither side in this case has expressly taken a position on the
question whether the grievances of Mitchum and Webb could have
been appealed to the DAB and reviewed by the Federal Circuit, and
we express no view on this question.


                                 5
           Instead of pursuing these remedies, the appellants

filed an action in district court against the VAMC's director,

chief of staff, associate director, chief of nursing service, and

chief nurse, as well as the regional chief nurse of the

Department of Veterans Affairs.       The complaint contained five

counts, but only the second is involved in this appeal.

           Count II alleged that in 1991 Mitchum began to

criticize the manner in which patients were treated at the VAMC.

According to the complaint, Mitchum complained about efforts to

close a unit of the facility, a general decline in patient care,

the death of a patient in June 1992, patient nutrition, and the

"warehousing" of psychiatric patients in the non-psychiatric

unit.

           Because of these criticisms, the complaint asserted,

Mitchum's superiors took retaliatory measures against him.

According to the complaint, Mitchum had received at least "highly

satisfactory" evaluations in the years before 1992, but he

received only a "satisfactory" rating in his 1991-92 performance

review.    The complaint further alleged that he was given oral

warnings concerning his performance and received a "Notice of

Less Than Satisfactory Performance" in October 1992; that his

superiors and other defendants acted in concert to inhibit his

promotions and cause his resignation; and that his superiors

removed him from his appointment to the Nutrition Support Team

and his position as Acting Chief of the Rehabilitation Medicine

Service.   Count II alleged that, at about the same time, Webb

began to criticize the manner in which patients were treated and


                                  6
was likewise targeted for retaliation.   According to the

complaint, Webb had received promotions and outstanding

performance evaluations until 1992, but in September 1992 she

received a written "Counseling for Performance" and was

subsequently demoted.

          The complaint alleged that Krumholz had complained in

September 1992 to the Department of Veterans Affairs Inspector

General's office that his boss had committed plagiarism and that

there had been an attempt to serve outdated food to patients.

Although Krumholz had previously received excellent evaluations,

the complaint alleged, he was subsequently given oral and written

counsellings and was demoted.

          Count II purported to assert a claim under 42 U.S.C.

§1983 and sought various forms of injunctive and declaratory

relief, including an order directing the defendants to cease and

desist from retaliation, harassment, and reprisal; an order

directing the removal of certain documents from the plaintiffs'

files; and an order directing the appointment of a permanent

community-based board of overseers to monitor the operations of

the facility.   Webb and Krumholz also sought reinstatement to

their prior positions.

          The defendants moved for dismissal or in the

alternative for summary judgment, and the magistrate judge to

whom this motion was referred recommended that it be granted.

With respect to Count II, the magistrate judge first observed

that 42 U.S.C. § 1983 does not authorize a suit against federal

officials.   Turning to the plaintiffs' argument that Count II


                                7
should be treated as asserting Bivens claims,4 the magistrate

judge observed that in Bush the Supreme Court had declined to

recognize a Bivens claim very similar to those asserted by the

plaintiffs here.   In rendering that decision, the magistrate

judge wrote, the Supreme Court "reasoned that Congress had set up

an elaborate and carefully thought out system for civil servants

to obtain review of employment decisions" and that the judiciary

should not alter that system by recognizing "an additional

damages claim against a supervisor for violation of First

Amendment rights."

           The magistrate judge found this same reasoning to be

applicable here.   The magistrate judge noted that Krumholz, like

the plaintiff in Bush, was subject to the CSRA, and that the

remaining plaintiffs, as appointed Veterans Administration

employees, had "an avenue of relief for adverse employment

actions pursuant to 38 U.S.C. § 7401(1)."   The magistrate judge

stated that "[i]f a Bivens action is inappropriate when the CSRA

applies to employment decisions, such action is equally

inappropriate where Title 38 remedies apply."   The magistrate

judge acknowledged that the "Supreme Court in Bush addressed only
the issue of a damages remedy, and not a request for injunctive

relief."   However, the magistrate judge continued:
           The rationale of Bush . . . is equally
           applicable to injunctive relief as to money
           damages. The Supreme Court was convinced
           that Congress had given careful thought to
           the extent and nature of remedies that ought
           to be made available to federal employees in

4
See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971).


                                8
           situations involving adverse employment
           decisions. Any extension of those remedies,
           whether involving damages or injunctive
           relief, ought to originate in Congress, and
           not the courts.


           The district court adopted the magistrate judge's

opinion and granted summary judgment in favor of the defendants

on Count II.   The court ordered the dismissal of some of the

other counts and entered summary judgment in favor of the

defendants on all of the remaining counts.       This appeal followed.



                             II.

           In Bush, a federal employee asserted a First Amendment

claim that was quite similar in all respects but one to the claim

of the appellants in this case.        In Bush, the employee contended

that he had been suspended in retaliation for whistle-blowing,

and although he had been restored to his prior position with

backpay as a result of administrative proceedings, he sought to

obtain damages and attorney's fees in a Bivens action.       462 U.S.

at 369-72 & nn. 8 and 9.    The Supreme Court, however, declined to
create the "new judicial remedy" that he sought.        Id. at 368. The

Court noted that a Bivens action could be defeated where there

are "`special factors counselling hesitation in the absence of

affirmative action by Congress.'"        Id. at 377 (quoting Bivens,

403 U.S. at 396), and the Court found such a factor in the

"comprehensive procedural and substantive provisions" of the

CSRA.   Id. at 368.   The Court noted that this "elaborate remedial

system" had been "constructed step by step, with careful



                                   9
attention to conflicting policy considerations."    Id. at 388. The

Court observed that the risk of personal liability could deter

supervisors from imposing discipline and that Congress was in "a

far better position that a court to evaluate the impact of a new

species of litigation between federal employees or the efficiency

of the civil service."   Id. at 389.   The Court thus declined "to

create a new substantive legal liability without legislative

aid[.]'"   Id. at 390 (citation omitted).

           Two years later, in United States v. Fausto, 484 U.S.

439 (1988), the Court pointed to the comprehensive nature of the

CSRA in holding that a federal employee could not seek backpay

under the Back Pay Act, 5 U.S.C. § 5596, even though such claim

had won judicial recognition prior to the CSRA.    Later the same

term, in Schweiker v. Chilicky, 487 U.S. 412 (1988), the Court

relied on Bush in refusing to recognize a non-statutory damages

claim for the unconstitutional denial of Social Security

disability benefits.   The Court observed that "[w]hen the design

of a Government program suggests that Congress has provided what

it considers adequate remedial mechanisms for constitutional

violations that may occur in the course of its administration, we

have not created additional Bivens remedies."    Id. at 423.

           Based on these decisions -- and in particular on Bush -

- a good argument can be made that a federal employee who has

meaningful administrative remedies and a right to judicial review

under the CSRA or another comparable statutory scheme should not

be permitted to bypass that scheme by bringing an action under 28

U.S.C. § 1331 and seeking injunctive or declaratory relief.


                                10
Several courts of appeals have so held, and these decisions have

much to recommend them.    See, e.g., Saul v. United States, 928

F.2d 829, 843 (9th Cir. 1991); Stephens v. Dep't of Health and

Human Services, 901 F.2d 1571, 1575-77 (11th Cir. 1990); Lombardi

v. Small Business Administration, 889 F.2d 959, 962 (10th Cir.

1989).5

          The District of Columbia Circuit, however, has reached

the opposite conclusion.   In Hubbard v. EPA, 809 F.2d 1 (D.C.

Cir. 1986), an unsuccessful applicant for a position as a

criminal investigator with the Environmental Protection Agency

claimed that he had been rejected because he had previously

engaged in communications with the press that were protected by

the First Amendment.   The panel that initially heard the appeal

held that Bush defeated the applicant's Bivens claim for damages

but permitted him to seek the equitable remedy of reinstatement.

Id. at 11.  The panel wrote:
               "[There is a] presumed availability of
          federal equitable relief against threatened
          invasions of constitutional interests."
          Bivens, 403 U.S. at 404, 91 S. Ct. at 2008
          (Harlan, J., concurring). See also Mount
          Healthy City Board of Education v. Doyle, 429
          U.S. 274, 283-84, 97 S. Ct. 568, 574-75, 50
          L.Ed.2d 471 (1977); Swann v. Charlotte-
          Mecklenburg Board of Education, 402 U.S. 1,
          15, 91 S. Ct. 1267, 1275, 28 L.Ed.2d 554
          (1971). In particular, this Circuit has
          recognized the right of a federal job
          applicant to seek injunctive relief from an
          agency's violation of his constitutional
          rights in general . . . and his first
          amendment rights in particular. . . .

5
See also Bryant v. Cheney, 924 F.2d 525, 528 (4th Cir. 1991)
(reserving decision); Pinar v. Dole, 747 F.2d 899 (4th Cir. 1984)
(no claim for injunctive relief for "minor" personnel action).


                                 11
Id. (footnote & citations omitted).   In a footnote, the panel

explained:
               Allowing federal employees and
          applicants to seek equitable relief in
          federal courts for allegedly unconstitutional
          personnel actions suggests an "end-run"
          problem. . . .

               Yet the rule in this Circuit, which has
          been repeatedly applied, is clearly
          different: CSRA does not preclude federal
          employees form seeking equitable relief
          against agencies for allegedly
          unconstitutional personnel actions. . . .

               The courts' power to impose equitable
          remedies against agencies is broader than its
          power to impose legal remedies against
          individuals. Bivens actions are a recent
          judicial creation and . . . comparatively
          easy for Congress to preempt. The court's
          power to enjoin unconstitutional acts by the
          government, however, is inherent in the
          Constitution itself, see Marbury v. Madison,
          5 U.S. (1 Cranch) 137, 2 L.Ed.60 (1803).
          Although Congress may limit this power, see
          Ex Parte McCardle, 74 U.S. (7 Wall) 506, 19
          L.Ed. 264 (1869), CSRA did not explicitly
          limit our jurisdiction to enjoin
          unconstitutional personnel actions by federal
          agencies.

Id. at 11 n.15.


          The portion of the panel decision concerning the claim

for damages was reheard en banc and reaffirmed by the full court.

Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988).   Although the

en banc court did not rehear the issue of the claim for

reinstatement, it commented:
          [W]e do not suggest that CSRA precludes the
          exercise of federal jurisdiction over the
          constitutional claims of federal employees
          and job applicants altogether. . . . On the


                               12
          contrary, time and again this court has
          affirmed the right of civil servants to seek
          equitable relief against their supervisors,
          and the agency itself, in vindication of
          their constitutional rights. See, e.g.
          Hubbard v. EPA, 809 F.2d 1, 11 (D.C.Cir.
          1986). . . .


Id. at 229 (footnote and citations omitted). On balance, we think
that the District of Columbia Circuit has taken the better

course.   The power of the federal courts to grant equitable

relief for constitutional violations has long been established.

See, e.g., Osborn v. United States Bank, 9 Wheat. 738, 838-46,

859 (1824); Ex parte Young, 209 U.S. 123, 156 (1908).    Thus, as

the District of Columbia Circuit observed, there is a "`presumed

availability of federal equitable relief against threatened

invasions of constitutional interests.'"   Hubbard, 809 F.2d at 11

(quoting Bivens, 403 U.S. at 404 (Harlan, J., concurring in the

judgment)).   It is reasonable to assume that Congress legislates

with the understanding that this form of judicial relief is

generally available to protect constitutional rights.    While

Congress may restrict the availability of injunctive relief (see,

e.g., 28 U.S.C. §§ 1341, 2283; 26 U.S.C. § 7421(a)), we believe

that we should be very hesitant before concluding that Congress

has impliedly imposed such a restriction on the authority to

award injunctive relief to vindicate constitutional rights.

           It is true that Bush found that the history and

structure of the CSRA spoke with sufficient clarity to preclude

the creation of a new Bivens claim.   But the Supreme Court has

developed a special jurisprudence for Bivens claims, and we are



                                13
hesitant to extend this jurisprudence into other spheres.      Just

because "special factors counselling hesitation" militate against

the creation of a new non-statutory damages remedy, it does not

necessarily follow that the long-recognized availability of

injunctive relief should be restricted as well.   We assume that

the power of the federal courts to award legal and equitable

relief in actions under 28 U.S.C. § 1331 stems from the same

source, see Bush, 462 U.S. at 374, but that does not mean that

the factors that counsel against one type of relief are equally

applicable with respect to the other.   See Bivens, 403 U.S. at

405-06 (Harlan, J., concurring in the judgment); Dellinger, Of

Rights and Remedies:   The Constitution As A Sword, 85 Harv. L.

Rev. 1532, 1543 (1972).

          As we have noted, a good argument can be made that the

reasoning of Bush should be applied to cases involving only

injunctive relief, but this application involves a big and

important jump.   Without more specific guidance from the Supreme

Court, we do not think that this is a jump that we should make.

We therefore hold that Bush and the related Supreme Court

decisions on which the defendants rely did not prevent the

district court from entertaining the appellants' requests for

injunctive relief.   Nor do we interpret these precedents as

limiting the district court's authority to award declaratory

relief under 28 U.S.C. §§ 2201-02.6



6
We do not reach the question whether such relief would be
inappropriate for any other reason.


                                14
                              III.

          For these reasons, the order of the district court is

reversed, and the case is remanded.




                               15
