ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civ. No. 93-00204)
Before: COWEN, NYGAARD, and ALITO, Circuit Judges
Opinion Filed: December 29, l995)
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.
The three appellants in this case are Kenneth L. Mitchum, previously Chief of Medical Services of the VAMC *fn1; 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. Section(s) 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). *fn2 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. Section(s) 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. Section(s) 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. Section(s) 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. Section(s) 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. Section(s) 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. Section(s) 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. Section(s) 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. Section(s) 1221(h), 7703(b).
Mitchum and Webb were appointed to their positions under 38 U.S.C. Section(s) 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. Section(s) 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. Section(s) 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. Section(s) 7462(a)(3)) -- the appointee may appeal to a Disciplinary Review Board (DAB). 38 U.S.C. Section(s) 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. Section(s) 7461(b)(2), 7463. *fn3
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 ...