Title Mitchum v. Hurt
Date 1995
By Alito
Subject Misc
Contents
Page 1
LEXSEE 73 F.3D 30
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 FOR THE THIRD CIRCUIT
73 F.3d 30; 1995 U.S. App. LEXIS 37150; 11 I.E.R. Cas. (BNA) 441
January 12, 1995, Argued
December 29, 1995, Filed
SUBSEQUENT HISTORY: **1 Rehearing Denied
March 13, 1996, Reported at: 1996 U.S. App. LEXIS
4626.
PRIOR HISTORY: ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Civ. No. 93-
00204).
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant employees sought review of the summary judgment from the United States District Court for the Western District of Pennsylvania, which was granted in favor of appellee hospital employer, in appellants' action that sought in- junctive and declaratory relief for violation of their U.S. Const. amend. I rights when appellee allegedly retaliated against them for making statements intended to secure improvements for appellee's patients.
OVERVIEW: Appellant employees challenged the sum- mary judgment granted in favor of appellee hospital em- ployer in appellants' action that sought injunctive and declaratory relief for violation of their U.S. Const. amend. I rights. Appellants alleged that appellee retaliated against them for making statements intended to secure improve- ments for appellee's patients. The district court held that appellants could not assert their claims in federal court because they were required to pursue available admin- istrative remedies under the Civil Service Reform Act,
38 U.S.C.S. § 7401(1). The court reversed the judgment and recognized the right of a federal job applicant to seek injunctive relief from an agency's violation of his constitu- tional rights in general and his U.S. Const. amend. I rights in particular. The court held that there was a presumed
availability of federal equitable relief against threatened invasions of constitutional interests. The court held that the district court was not prohibited from entertaining appellants' requests for injunctive relief or limited in its authority to award declaratory relief under 28 U.S.C.S. §§
2201, 2202.
OUTCOME: The judgment was reversed because appel- lant employees were entitled to federal equitable relief for the threatened invasions of their constitutional interests by appellee hospital employer.
CORE TERMS: injunctive relief, personnel, equitable relief, patient, first amendment, declaratory relief, ad- verse action, retaliation, federal employees, constitutional rights, corrective action, summary judgment, reinstate- ment, injunctive, administrative remedies, federal em- ployee, inappropriate, non-statutory, supervisor, direct- ing, recommend, notify, nurse, counselling, reasonable grounds, authority to award, statutory scheme, power to impose, judicial review, defendants rely
LexisNexis(R) Headnotes
Labor & Employment Law > Collective Bargaining & Labor Relations > Judicial Review
HN1 Where an allegation of prohibited personnel practice submitted to the Office of Special Counsel
(OSC) concerns retaliation for whistle-blowing under the Civil Service Reform Act, review by the Merit System Protection Board (MSPB) is always available. If the OSC notifies the person making the allegation that the investi- gation 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, and the MSPB may issue a stay and order such
73 F.3d 30, *; 1995 U.S. App. LEXIS 37150, **1;
11 I.E.R. Cas. (BNA) 441
Page 2
corrective action as it considers appropriate. 5 U.S.C.S.
§§ 1214(a)(3), (b)(4)(A), 1221(a). A final order or de- cision of the MSPB is subject to judicial review in the United States Court of Appeals for the Federal Circuit. 5
U.S.C.S. §§ 1221(h), 7703(b).
Labor & Employment Law > Collective Bargaining & Labor Relations > Judicial Review
HN2 Under 38 U.S.C.S. § 7401(1), the most extensive review is available in a case involving a major adverse action based on conduct or performance. The term "ma- jor adverse action" is defined as including a suspension, transfer, reduction in grade or basic pay, or discharge. 38
U.S.C.S. § 7461(c)(2). A question of professional conduct or competence is defined as a question involving "direct patient care" or "clinical competence." § 7461(c)(3). In a case concerning a "major adverse action" based on "con- duct or performance" or in a so-called "mixed case", the appointee may appeal to a Disciplinary Review Board
(DAB). 38 U.S.C.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 DAB finds appropriate including ex- pungement of records relating to the action. § 7462(d)(1). An appointee adversely affected by a DAB decision, as reviewed by the Secretary, may obtain judicial review. §
7462(f)(1).
Labor & Employment Law > Collective Bargaining & Labor Relations > Judicial Review
HN3 Grievances not involving a "major adverse action" based on "conduct or performance" or a "mixed case" pro- ceed through internal VA administrative channels or those specified in an applicable collective bargaining agree- ment. 38 U.S.C.S. §§ 7461(b)(2), 7463.
Civil Procedure > Remedies > Declaratory Relief
HN4 A federal job applicant has the right to seek injunc- tive relief from an agency's violation of his constitutional rights in general and his first amendment rights in partic- ular.
Civil Procedure > Remedies > Declaratory Relief
HN5 There is a presumed availability of federal equi- table relief against threatened invasions of constitutional interests. It is reasonable to assume that Congress legis- lates with the understanding that this form of judicial relief is generally available to protect constitutional rights.
COUNSEL: JON PUSHINSKY, ESQ. (Argued), MICHAEL L. ROSENFIELD, ESQ. 1808 Law & Finance Bldg. Pittsburgh, PA 15219, Counsel for Appellants.
FREDERICK W. THIEMAN, United States Attorney, MICHAEL L. IVORY (Argued), Assistant U.S. Attorney,
633 U.S. Post Office & Courthouse, Pittsburgh, PA 15219,
Counsel for Appellees.
JUDGES: Before: COWEN, NYGAARD, and ALITO, Circuit Judges.
OPINIONBY: ALITO
OPINION: *31 OPINION OF THE COURT
ALITO, Circuit Judge:
This is an appeal by three current or former em- ployees 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 declara- tory relief for these alleged constitutional violations but no damages. The district court granted summary judg- ment for the defendants on these claims, holding that under Bush v. Lucas, 462 U.S. 367, 76 L. Ed. 2d 648, 103
S. Ct. 2404 (1983), the plaintiffs **2 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 de- fendants 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 n1 ; 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.
n1 Mitchum left the Veterans Administration before this appeal was argued, but he claims that he continues to be harmed by the presence in his per- sonnel file of allegedly false and misleading state- ments 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.
**3
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 (cod-
73 F.3d 30, *31; 1995 U.S. App. LEXIS 37150, **3;
11 I.E.R. Cas. (BNA) 441
Page 3
ified at various sections of Title 5 U.S.C.). Under the CSRA, retaliation against a "whistle-blower" is a pro- hibited 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 *32 (MSPB). n2 5
U.S.C. §§ 1212(a)(2), 1214(a)(1)(A). The OSC must in- vestigate such an allegation and determine "whether there are reasonable grounds to believe that a prohibited per- sonnel practice has occurred, exists, or is to be taken."
5 U.S.C. § 1214(a)(1)(A). If the OSC determines that no such grounds exist, the person who submitted the allega- tion 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 rea- sonable grounds to believe that the prohibited personnel action was or is to be taken, the OSC may **4 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 reason- ably believed to have committed a prohibited personnel practice. 5 U.S.C. § 1215(a)(1)(A).
n2 Krumholz began to use these procedures by filing an administrative complaint, but his com- plaint was dismissed under 29 C.F.R. § 1614.107(c) because the district court action had already been commenced and was still pending.
HN1 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 ter- minated 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 **5 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 differ- ent statutory scheme. HN2 Under this scheme, the most extensive review is available in a case involving a "ma- jor 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 pro-
fessional conduct or competence is defined as a question involving "direct patient care" or "clinical competence."
38 U.S.C. § 7461(c)(3). In a case concerning a "major ad- verse action" based on "conduct or performance" or in a so-called "mixed case" -- i.e., one involving both a "ma- jor 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 **6
a decision, the Secretary may, pursuant to that decision,
"order reinstatement, award back pay, and provide such other remedies as the Board finds appropriate . . ., in- cluding 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).
HN3 Grievances not involving a "major adverse ac- tion" based on "conduct or performance" or a "mixed case" proceed through internal VA administrative chan- nels or those specified in an applicable collective bargain- ing agreement. 38 U.S.C. §§ 7461(b)(2), 7463. n3
n3 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.
Instead of pursuing these remedies, the appellants filed an action in district court against the VAMC's di- rector, chief of staff, associate director, **7 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 com- plained about efforts to close a unit of the facility, a gen- eral decline in patient care, the death of a patient *33 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 be- fore 1992, but he received only a "satisfactory" rating in his 1991-92 performance review. The complaint fur- ther alleged that he was given oral warnings concerning his performance and received a "Notice of Less Than Satisfactory Performance" in October 1992; that his su- periors and other defendants acted in concert to inhibit
73 F.3d 30, *33; 1995 U.S. App. LEXIS 37150, **7;
11 I.E.R. Cas. (BNA) 441
Page 4
his promotions and cause his resignation; and that his su- periors removed him **8 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 like- wise targeted for retaliation. According to the complaint, Webb had received promotions and outstanding perfor- mance 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 out- dated 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 declara- tory 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' **9 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 alterna- tive 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' ar- gument that Count II should be treated as asserting Bivens claims, n4 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 ser- vants to obtain review of employment decisions" and that the judiciary should not alter that system by recogniz- ing "an additional damages claim against a supervisor for violation of First Amendment rights."
n4 See Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct.
1999 (1971).
**10
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 re- lief for adverse employment actions pursuant to 38 U.S.C.
§ 7401(1)." The magistrate judge stated that "if a Bivens action is inappropriate when the CSRA applies to em- ployment decisions, such action is equally inappropriate where Title 38 remedies apply." The magistrate judge ac- knowledged 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 contin- ued:
The rationale of Bush . . . is equally appli- cable to injunctive relief as to money dam- ages. The Supreme Court was convinced that Congress had given careful thought to the ex- tent and nature of remedies that ought to be made available to federal employees in sit- uations involving adverse employment de- cisions. Any extension of those remedies, whether involving damages *34 or injunc- tive relief, ought to originate in Congress, and not the courts.
The district **11 court adopted the magistrate judge's opinion and granted summary judgment in fa- vor of the defendants on Count II. The court ordered the dismissal of some of the other counts and entered sum- mary 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 dam- ages and attorney's fees in a Bivens action. 462 U.S. at
369-72 & nn. 8 and 9. The Supreme Court, however, de- clined 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 hes- itation 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. **12 Id. at 368. The Court noted that this "elaborate remedial system" had been "constructed step by step, with careful attention to conflicting policy considerations." Id. at 388. The Court
73 F.3d 30, *34; 1995 U.S. App. LEXIS 37150, **12;
11 I.E.R. Cas. (BNA) 441
Page 5
observed that the risk of personal liability could deter su- pervisors 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, 98 L. Ed. 2d 830, 108 S. Ct. 668 (1988), the Court pointed to the comprehensive nature of the CSRA in hold- ing 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, 101 L. Ed. 2d 370, 108 S. Ct. 2460 (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 "when the design of a Government **13 program suggests that Congress has provided what it considers ad- equate 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 em- ployee who has meaningful administrative remedies and a right to judicial review under the CSRA or another compa- rable 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. 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). n5
n5 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).
**14
The District of Columbia Circuit, however, has reached the opposite conclusion. In Hubbard v. EPA, 257
U.S. App. D.C. 305, 809 F.2d 1 (D.C. Cir. 1986), an unsuc- cessful 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:
*35
" There is a presumed availability of fed- eral equitable relief against threatened in- vasions 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 recog- nized HN4 the right of a federal job appli- cant to seek injunctive relief from an agency's violation of his constitutional **15 rights in general . . . and his first amendment rights in particular. . . .
Id. (footnote & citations omitted). In a footnote, the panel explained:
Allowing federal employees and appli- cants to seek equitable relief in federal courts for allegedly unconstitutional personnel ac- tions 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 agen- cies for allegedly unconstitutional personnel actions. . . .
The courts' power to impose equitable remedies against agencies is broader than its power to impose legal remedies against in- dividuals. Bivens actions are a recent judi- cial creation and . . . comparatively easy for Congress to preempt. The court's power to enjoin unconstitutional acts by the govern- ment, 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 **16 personnel actions by federal agencies.
Id. at 11 n.15.
The portion of the panel decision concerning the claim
73 F.3d 30, *35; 1995 U.S. App. LEXIS 37150, **16;
11 I.E.R. Cas. (BNA) 441
Page 6
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:
We do not suggest that CSRA precludes the exercise of federal jurisdiction over the con- stitutional claims of federal employees and job applicants altogether. . . . On the con- trary, time and again this court has affirmed the right of civil servants to seek equitable re- lief against their supervisors, and the agency itself, in vindication of their constitutional rights. See, e.g. Hubbard v. EPA, 257 U.S. App. D.C. 305, 809 F.2d 1, 11 (D.C.Cir.
1986). . . .
859 F.2d at 229 (footnote and citations omitted). On bal- ance, 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, 22 U.S. 738, 9 Wheat. 738, 838-46, 859, 6 L. Ed.
204 (1824); Ex parte Young, 209 U.S. 123, 156, 52 L. Ed.
714, 28 S. Ct. 441 (1908). Thus, as the District **17 of Columbia Circuit observed, HN5 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., con- curring 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 constitu- tional 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 in- junctive 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 hesitant to extend this jurisprudence into other spheres. Just because "special factors counselling hesita- tion" militate against the creation of a new non-statutory damages remedy, it does not necessarily **18 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 *36 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 involv- ing 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 dis- trict court's authority to award declaratory relief **19 under 28 U.S.C. §§ 2201-02. n6
n6 We do not reach the question whether such relief would be inappropriate for any other reason.
III.
For these reasons, the order of the district court is reversed, and the case is remanded.
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