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Can an aggrieved federal employee obtain an injunction or other equitable relief against the government (in its capacity as his employer) if a “ Bivens action” for damages is unavailable? That was the question asked by the 11th U.S. Circuit Court of Appeals in a July 8 decision, Hardison v. Cohen, No. 03-13162. The Bivens action draws its name from Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1970). The Bivens court ruled that individuals have a cause of action-rooted not in statute but in the Constitution itself-against federal agents who violate their constitutional rights under color of federal law. In subsequent decisions, the high court has said that a Bivens action for money damages is not available if Congress has addressed the sort of wrongdoing at issue by enacting a remedial statutory scheme. In U.S. v. Fausto, 484 U.S. 439 (1988), for instance, the court ruled that the Civil Service Reform Act, which governs federal employment, was just such a remedial scheme and thus foreclosed a Bivens action to obtain back pay. Officially agnostic But the Supreme Court has never said whether the existence of a statutory remedial scheme rules out requesting equitable relief from a federal court. The 11th Circuit ultimately dodged the issue in Hardison, but did clarify its position. The court noted that legal scholars and its sister circuits have sometimes interpreted 11th Circuit precedent as standing for the proposition that a remedial statutory scheme puts both legal and equitable remedies out of bounds. In Hardison, the court officially declared itself agnostic on the issue. It managed to avoid a decisive answer because it found the plaintiff’s case deficient in other respects. The 9th and 10th circuits have ruled that the existence of the act’s remedial scheme leaves federal employees with no judicial remedies, either legal or equitable. In 1991′s Saul v. U.S., 928 F.2d 829, the 9th Circuit relied heavily on Supreme Court precedent establishing that federal judges should not award monetary damages under Bivens if there is a statutory scheme, even if the scheme cannot “make whole” the aggrieved employee. The 9th Circuit explained that what might appear to be a gaping hole in the statutory scheme could instead reflect Congress’ precise calibration of what remedies are necessary�a calibration that would be thrown off if the courts intruded. The court saw no reason not to extend that lesson to equitable remedies: “The [act's] elaborate remedies show that judicial interference in federal employment is disfavored, whether the employee requests damages or injunctive relief.” Finally, the court noted that the act already gave federal employees some equity-like remedies in administrative grievance proceedings. The D.C. and the 3d circuits have, by contrast, said that equity should not be treated the same as money damages. What set them apart, the 3d Circuit wrote in 1995′s Mitchum v. Hurt, 73 F.3d 30, is that “The power of the federal courts to grant equitable relief for constitutional violations has long been established.” It was thus not unreasonable to suppose that Congress’ calibration presupposed that such equitable remedies would be available in addition to the remedies available under the act, the court concluded. Young’s e-mail address is [email protected].

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