Mitchum v. Hurt, 94-3358

• Decision Date: 13 March 1996
• Docket Number: No. 94-3358,94-3358
• Citation: 73 F.3d 30
• Parties: 11 IER Cases 441 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.
• Court: U.S. Court of Appeals — Third Circuit

Page 30

73 F.3d 30

11 IER Cases 441

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.

No. 94-3358.

United States Court of Appeals Third Circuit.

Argued Jan. 12, 1995.

Decided Dec. 29, 1995.

Sur Petition for Rehearing March 13, 1996.

Jon Pushinsky (argued), Michael L. Rosenfield, Pittsburgh, for Appellants.

Frederick W. Thieman, United States Attorney, Michael L. Ivory (argued), Assistant U.S. Attorney, Pittsburgh, for Appellees.

Before COWEN, NYGAARD, and ALITO, Circuit Judges.

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, 103 S.Ct. 2404, 76 L.Ed.2d 648 (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.

I.

The three appellants in this case are Kenneth L. Mitchum, previously Chief of Medical Services of the VAMC; ¹ 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. Sec. 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 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. Secs. 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. Sec. 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. Secs. 1221(h), 7703(b).

                (MSPB). 2  5 U.S.C. Secs. 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. Sec. 1214(a)(1)(A).  If the OSC determines that no such grounds exist, the person who submitted the allegation must be notified.  5 U.S.C. Sec. 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. Sec. 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. Sec. 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. Sec. 1215(a)(1)(A)
                

Mitchum and Webb were appointed to their positions under 38 U.S.C. Sec. 7401(1) and were subject to a different statutory scheme. Under this scheme, the most extensive review 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. Sec. 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. Sec. 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. Sec. 7462(a)(3))--the appointee may appeal to a Disciplinary Appeals Board (DAB). 38 U.S.C. Sec. 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. Sec. 7462(d)(1). An appointee adversely affected by a DAB decision, as reviewed by the Secretary, may obtain judicial review. 38 U.S.C. Sec. 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. Secs. 7461(b)(2), 7463. ³

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 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 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.

in June 1992, patient nutrition, and the "warehousing" of psychiatric patients in the non-psychiatric unit.

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 counselings and was demoted.

Count II purported to assert a claim under 42 U.S.C. Sec. 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. Sec. 1983 does not authorize a suit against federal officials. Turning to the plaintiffs' argument that Count II 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 plaintiff...