FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 July 08, 2004 

 THOMAS K. KAHN 

 CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 03-13162

 

D.C. Docket No. 02-23079-CIV-KMM

JAMES K. HARDISON,

 

Plaintiff-Appellant,

versus

MICHAEL M. COHEN, individually, 

DEPARTMENT OF VETERANS AFFAIRS,

Anthony J. Principi, as Secretary,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Southern District of Florida

 

(July 8, 2004)

Before ANDERSON, HULL and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:
2

This appeal presents an issue that has divided courts and commentators

alike: whether a comprehensive statutory scheme that provides no remedy for a

former employee of a federal agency, who contends that his discharge violated the

Constitution, bars the former employee from obtaining any monetary or equitable

relief. In deference to Congress, we conclude that the statutory scheme bars a

claim for monetary damages, but we acknowledge, without deciding the issue, that

a serious question remains whether equitable relief is necessarily precluded. We

conclude, however, that this employee is not entitled to equitable relief, because

he did not have a property interest in the position from which he was removed.

I. FACTS AND PROCEDURAL HISTORY

On July 1, 2000, Dr. James K. Hardison began a three-year appointment as a

medical resident in the podiatric residency program of the Miami Department of

Veterans Affairs Medical Center (Medical Center). He was appointed under 38

U.S.C. section 7406, which enables the Secretary of the Department of Veterans

Affairs (VA), Anthony Principi, to employ medical residents. On June 14, 2002,

Dr. Michael Cohen, who supervises the podiatry residents and is the head of the

podiatry department at the Medical Center, fired Hardison from the program.

Cohen accused Hardison of various acts of misconduct and poor performance of

his medical duties. 
3

Hardison attempted to appeal his dismissal. He maintained that regulations

of the Medical Center and grievance policies of the Council on Podiatric Medical

Education (Council), the accrediting organization for the podiatric residency

program, required a pretermination hearing and a posttermination appeal. Cohen

denied Hardison’s request. 

Hardison then sued Cohen, in his individual capacity, and Principi, in his

official capacity. Hardison asserted that he had been denied due process of law in

violation of the Fifth Amendment. Hardison requested three forms of relief: (1) a

declaratory judgment; (2) reinstatement, back pay, and a hearing and appeal

regarding any future termination; and (3) money damages.

The district court referred Hardison’s suit to a magistrate judge, who issued

a report and recommendation that the case be dismissed. One day after the

deadline for filing objections to the report and recommendation, Hardison filed a

motion for an enlargement of time in which to file objections. That motion was

granted. Hardison filed his objections, along with his proposed amended

complaint, but again his filing was a day late. The district court adopted the

magistrate judge’s report and recommendation, denied Hardison’s objections as

untimely, denied leave to file an amended complaint, and dismissed the pending

complaint. The district court reasoned that Title 38 provides the sole remedy for
4

VA employees, and that all judicial remedies are precluded by that statutory

scheme.

II. STANDARD OF REVIEW

Because this appeal arises from the dismissal of a complaint, under Federal

Rule of Civil Procedure Rule 12(b)(6), we accept the allegations in the complaint

as true and construe them in the light most favorable to Hardison. Hill v. White,

321 F.3d 567, 569-70 (11th Cir. 2003). We review the dismissal of a complaint

for its failure to state a claim upon which relief can be granted de novo. Next

Century Communications Corp. v. Ellis, 318 F.3d 1023, 1025 (11th Cir. 2003).

III. DISCUSSION

To determine whether Hardison’s complaint failed to state a claim upon

which relief can be granted, we must evaluate separately each form of relief he

requested. We first turn to Hardison’s request for money damages. We then

consider his request for equitable relief.

A. Money Damages under Bivens

Hardison seeks damages from Cohen for his role in Hardison’s allegedly

wrongful discharge. In support of his claim against Cohen, Hardison argues that

damages are available under Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, which provides a cause of action against a federal agent who,
5

while acting under the color of federal law, has violated the constitutional rights of

an individual. 403 U.S. 388, 397, 91 S. Ct. 1999, 2005 (1970). Bivens actions are

brought directly under the Constitution, without a statute providing a right of

action. Bivens involved alleged violations of the Fourth Amendment, but the

Court has also allowed Bivens actions for violations of the Due Process Clause of

the Fifth Amendment, Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264 (1979), and

the prohibition of cruel and unusual punishment under the Eighth Amendment,

Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468 (1980). 

Damages can be obtained in a Bivens action when (1) the plaintiff has no

alternative means of obtaining redress and (2) no “special factors counseling

hesitation” are present. Stephens v. Dep’t of Health & Hum. Servs., 901 F.2d

1571, 1575-76 (11th Cir. 1990), cert. denied, 498 U.S. 998, 111 S. Ct. 555 (1990). 

Those special factors “include an appropriate judicial deference” toward the will

of Congress: “When 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.” Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S.

Ct. 2460, 2468 (1988).

The Supreme Court has “responded cautiously to suggestions that Bivens
6

remedies be extended into new contexts. The absence of statutory relief for a

constitutional violation, for example, does not by any means necessarily imply that

courts should award money damages against the officers responsible for the

violation.” Chilicky, 487 U.S. at 421, 108 S. Ct. at 2467. In Bush v. Lucas, the

Supreme Court refused to allow a federal employee to maintain, under the First

Amendment, a Bivens action against the agency for which he worked. 462 U.S.

367, 103 S. Ct. 2404 (1983). The Court reasoned that, although the “existing

remedies d[id] not provide complete relief for the plaintiff,” id. at 388, 103 S. Ct.

at 2417, the statutory remedial scheme was “clearly constitutionally adequate.” Id.

at 378 n.14, 103 S. Ct. at 2412 n.14. Because “Congress [was] in a better position

to decide whether or not the public interest would be served” by a damages

remedy, the Bush Court refused to supplement “an elaborate remedial system that

has been constructed step by step, with careful attention to conflicting policy

considerations, . . . [with] a new judicial remedy for the constitutional violation at

issue.” Id. at 388, 103 S. Ct. at 2416-17. 

In Chilicky, the Supreme Court again refused to allow a Bivens action for

damages to supplement a statutory remedial scheme that did not provide full

compensation to injured parties. Chilicky, 487 U.S. at 428-29, 108 S. Ct. at 2470. 

The Chilicky plaintiffs, whose Social Security disability benefits were wrongfully
7

terminated, filed suit for damages under Bivens on the ground that they had been

denied due process under the Fifth Amendment. The plaintiffs simultaneously

pursued administrative remedies for recipients of Social Security benefits, with

some success: all of the plaintiffs obtained reinstatement to the program; two

obtained full retroactive benefits; and another obtained partial retroactive benefits. 

Id. at 417, 108 S. Ct. at 2464-65. Although the plaintiffs could not be “fully

remedied by the ‘belated restoration of back benefits[,]’” the Court held that

“Congress is the body charged with making the inevitable compromises” in

fashioning remedies for injuries relating to “massive and complex” government

programs. Id. at 429, 108 S. Ct. at 2470. The Court declined to allow the

plaintiffs to maintain a Bivens action for damages, because the Court found “no

legal basis that would allow” a judicially created remedy to supplement the

administrative remedy provided by Congress. Id. at 429, 108 S. Ct. at 2471.

In the same term that it decided Chilicky, the Supreme Court, in United

States v. Fausto, held that a civil servant excluded from judicial review of a

personnel action, under the Civil Service Reform Act of 1978 (CSRA), could not

obtain relief under the Back Pay Act. 484 U.S. 439, 455, 108 S. Ct. 668, 677

(1988). The Court explained that “[t]he CSRA established a comprehensive

system for reviewing personnel action taken against federal employees.” Id. The
8

Court reasoned that the exclusion of the plaintiff from the class of employees

entitled to judicial review, under the CSRA, revealed a “considered congressional

judgment” that the plaintiff was not entitled to any judicial relief. Id. at 448, 108

S. Ct. at 674. 

Following Bush, Chilicky, and Fausto, this Court, in Lee v. Hughes, refused

to allow a terminated employee to maintain a Bivens claim for damages against a

federal agency. 145 F.3d 1272 (11th Cir. 1998). In Lee, a former probation

officer sued his supervisors and alleged that his discharge was racially motivated. 

Id. at 1273. The officer was excluded from the administrative and judicial review

provided by the CSRA, and, therefore, had no statutory remedy for his discharge. 

Id. at 1274. The Lee Court held that the officer could not bring, under the Fifth

Amendment, a Bivens action for damages because his exclusion from the remedies

of the CSRA was a “special factor counseling hesitation,” which reflected an

intent of Congress to afford him no legal relief. Id. at 1277. The Lee Court

reasoned that, under “this country’s long-respected separation of powers doctrine,

courts should be hesitant to provide an aggrieved plaintiff with a remedy where

Congress intentionally has withheld one.” Id.

Based on our precedent in Lee, Hardison’s claim for money damages fails.

Hardison was excluded, under Title 38, from the remedial processes afforded to
9

permanent VA employees. Sections 7461 to 7464 of Title 38 establish the

disciplinary and grievance procedures that apply to section 7401(1) employees, the

definition of which excludes “interns and residents appointed pursuant to section

7406.” 38 U.S.C. § 7461(c)(1). Medical residents appointed under section 7406

are not entitled to any of the remedies afforded to permanent, full-time VA

medical professionals.

It would thwart the will of Congress to allow Hardison, who is excluded

from the remedies of Title 38, to bring a Bivens action for damages, when

permanent VA physicians, who are provided limited remedies in Title 38, are not

allowed, under Bush, Chilicky, and Lee, to bring a Bivens action. Cf. Berry v.

Hollander, 925 F.2d 311 (9th Cir. 1991); Maxey v. Kadrovach, 890 F.2d 73 (8th

Cir. 1989); Heaney v. U.S. Veterans Admin., 756 F.2d 1215 (5th Cir. 1985). The

Tenth Circuit, in examining the statutory predecessor to section 7461, explained

that Congress intended to provide a “summary process by which unqualified

physicians previously protected by civil service could be expeditiously separated

from service.” Franks v. Nimmo, 796 F.2d 1230, 1240 (10th Cir. 1986). 

Allowing Hardison to seek damages under Bivens would undermine that policy, 

as it would give greater rights to residents than to permanent VA physicians. The

district court, therefore, properly dismissed Hardison’s complaint for money
10

damages.

B. Availability of Equitable Relief 

Whether Hardison can state a claim for equitable relief is a closer question. 

Our sister circuits have reached different conclusions about whether the

unavailability of a Bivens action for damages for a federal employee means that he

is also barred from obtaining equitable relief for an alleged violation of the

Constitution. Although this Court has not squarely addressed that question, two of

our precedents can be read to support either of the possible answers. Cf. Stephens

v. Dep’t of Health & Hum. Servs., 901 F.2d at 1575-76 with Perry v. Thomas, 849

F.2d 484, 484 (11th Cir. 1988) (per curiam). 

The Supreme Court has not addressed directly the issue whether a remedial

statutory scheme necessarily precludes an action for equitable relief brought by a

federal employee. Bush and Chilicky addressed only Bivens actions for damages. 

Chilicky, 487 U.S. at 428, 108 S. Ct. at 2470 (“The remedy sought in Bush was

virtually identical to the one sought by respondents in this case: consequential

damages for hardships resulting from an allegedly unconstitutional denial of a

statutory right.”). “[F]ederal courts have historically had broad authority to

fashion equitable remedies[,]” and the Supreme Court has not ruled definitively

that Congress has the authority to preclude those remedies. Carlson v. Green, 446
11

U.S. at 42-44, 100 S. Ct. at 1484-85 (Rehnquist, J., dissenting). 

Several of our sister circuits have differed on whether equitable relief is

precluded by the presence of a statutory remedial scheme. In Mitchum v. Hurt, the

Third Circuit stated that the “power of the federal courts to grant equitable relief

for constitutional violations has long been established.” 73 F.3d 30, 35 (3d Cir.

1995). The Mitchum court acknowledged, however, that under the reasoning of

Bush, a “good argument can be made” that a federal employee subject to a

comprehensive remedial 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.” Id. at 34. The Third Circuit nevertheless refused to apply the

reasoning of Bush to suits for equitable relief and reasoned “that Congress

legislates with the understanding that this form of judicial relief is generally

available to protect constitutional rights.” Id. at 35. 

In Hubbard v. EPA, the District of Columbia Circuit ruled that “the courts’

power to impose equitable remedies against agencies is broader than its power to

impose legal remedies against individuals.” 809 F.2d 1, 11 n.15 (D.C. Cir. 1986)

vacated on other grounds & reaff’d by Spagnola v. Mathis, 859 F.2d 223 (D.C.

Cir. 1988) (en banc). Although “Congress may limit this power . . . CSRA did not

explicitly limit our jurisdiction to enjoin unconstitutional personnel actions by
12

federal agencies.” Hubbard, 809 F.2d at 11 n.15. The reasoning of Hubbard was

affirmed in Spagnola, in which the court stated, “[T]ime 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.” 

Spagnola, 859 F.2d at 229-30.

The Ninth and Tenth Circuits have held that, under Bush and Chilicky, a

comprehensive remedial scheme bars a federal employee from obtaining equitable

relief. In Saul v. United States, the Ninth Circuit reasoned, “judicial interference

in federal employment is disfavored, whether the employee requests damages or

injunctive relief.” 928 F.2d 829, 843 (9th Cir. 1991). In Lombardi v. Small

Business Administration, the Tenth Circuit explained that the “clear purpose of

Chilicky . . . is to virtually prohibit intrusion by the Courts into the statutory

scheme. . . . This judicial intervention is disfavored whether it is accomplished by

the creation of a damages remedy or injunctive relief.” 889 F.2d 959, 961-62

(10th Cir. 1989). The Fourth and Seventh Circuits have acknowledged this

division of authority, but have not decided the issue. Bryant v. Cheney, 924 F.2d

525, 528 n.2 (4th Cir. 1991); Paige v. Cisneros, 91 F.3d 40, 44 (7th Cir. 1996).

Commentators have also drawn different conclusions about this issue. Dean

Nichol criticizes the Supreme Court for displaying “too strong a hesitancy . . . to
13

recognize constitutional damages claims.” Gene R. Nichol, Bivens, Chilicky, and

Constitutional Damages Claims, 75 Va. L. Rev. 1117, 1154 (1989). He argues

that “the present juxtaposition of a hesitancy to grant damages awards with a

willingness to allow injunctive relief . . . gets the traditional interplay between law

and equity exactly backwards. Equitable remedies . . . are normally available only

after legal remedies have been demonstrated inadequate.” Id. at 1135. Nichol

concludes that damages should be available “when either the congressional

remedy is inadequate or the decision that the Court is asked to make is committed

to another branch of government.” Id. at 1153.

Another commentator argues that equitable remedies should be allowed,

unless the statutory remedial scheme is “constitutionally sufficient.” Elizabeth A.

Wells, Note, Injunctive Relief for Constitutional Violations: Does the Civil

Service Reform Act Preclude Equitable Remedies?, 90 Mich. L. Rev. 2612, 2645

(1992). Otherwise, deficiencies in remedial schemes would leave “specific classes

of federal employees without constitutional protections.” Id. Denying the federal

courts “the power to review the sufficiency of legislative schemes” and provide

equitable relief violates the separation of powers, because the courts are unable to

serve “as a check on other branches of government.” Id. at 2642. Civil servants,

therefore, must “be able to seek equitable relief through the federal courts, or their
14

constitutional rights may be rendered meaningless.” Id. at 2645. 

Although some courts of appeals and commentators have read our decision

in Stephens v. Department of Health & Human Services as foreclosing equitable

remedies in the face of a comprehensive remedial statutory scheme, Mitchum, 73

F.3d at 34; Paige, 91 F.3d at 44; Martin H. Redish & Suzanna Sherry, Federal

Courts 874 (4th ed. 1998), we are unpersuaded that this circuit has ruled squarely

on the issue for three reasons. First, in Stephens we did not mention any possible

distinction between legal and equitable relief. Second, the plaintiff in Stephens

was eligible for and took advantage of an administrative remedy. Stephens, 901

F.2d at 1573-74. Had the Stephens plaintiff been left without a remedy, it is not

clear that this Court would have found that his equitable claim was barred. Third,

Stephens did not discuss Perry v. Thomas, which held that the federal courts “have

the power to issue injunctive relief, in appropriate cases, in disputes between the

United States and its employees, notwithstanding the existence of administrative

remedies.” 849 F.2d at 484. 

We must resolve this difficult question only if Hardison possessed a

property interest in his former position with the Medical Center. Implicit in any

claim under the Due Process Clause of the Fifth Amendment is the requirement

that the interest threatened be either “life, liberty, or property.” U.S. Const.
15

Amend. V. Hardison contends that he has a property interest in his employment as

a medical resident, but the word “property” must be given “some meaning.” Bd.

of Regents v. Roth, 408 U.S. 564, 572, 92 S. Ct. 2701, 2706 (1972). Property

interests are not created by the Constitution, but “are created and their dimensions

are defined by existing rules or understandings that stem from an independent

source such as state law – rules or understandings that secure certain benefits and

that support claims of entitlement to those benefits.” Id. at 577, 92 S. Ct. at 2709. 

Federal law, no less than state law, can provide the rules or understandings that

create and define property interests. See Mathews v. Eldridge, 424 U.S. 319, 332,

96 S. Ct. 893, 901 (1976). We must, therefore, examine the federal laws under

which Hardison was employed by a federal agency to determine whether those

laws reasonably could support a property interest in his residency.

Title 38 gives no support to Hardison’s claim that he has a property interest

in his former job protected by the Constitution. Hardison was appointed under 38

U.S.C. section 7406, which allows the Secretary of the VA to appoint residents

and interns. Section 7406 employees are appointed “without regard to civil

service or classification laws, rules, or regulations.” Id. § 7406(a)(1). Section

7406 also gives discretion to the Secretary in managing the employment details of

residents and interns. Id. § 7406(b), (c). Those employees are denied any right to
16

appeal an adverse personnel action. Id. § 7461(c)(1). Hardison was a temporary

employee, and he was appointed under a system that allows employees to be

“expeditiously separated from service.” Franks, 796 F.2d at 1240.

Hardison’s contention that he has a property interest in his job is similar to

the contention advanced by the plaintiffs in Silva v. Bieluch, 351 F.3d 1045 (11th

Cir. 2003). In Silva, the plaintiffs were deputy sheriffs who were demoted from

their positions as probationary lieutenants. Id. at 1046. Those plaintiffs asserted

that their due process rights were violated because they were demoted without a

hearing. Id. at 1047. This Court concluded that, because their appointments were

probationary, the plaintiffs had no property interest. Id. at 1047-48. Like the

plaintiffs in Silva, Hardison had neither a guarantee of future employment with the

Medical Center, nor a statutory right to appeal any adverse personnel action, and

he, therefore, cannot prove that he had a property interest in his job at the Medical

Center.

Finally, Hardison complains that Cohen violated the grievance policies of

the Council, which required that all podiatric residents be afforded a

pretermination hearing and a posttermination appeal. Because Hardison does not

and cannot allege that the grievance policies established the exclusive grounds

upon which his discharge could be based nor that a podiatry resident could be
17

discharged only for cause, the grievance policies did not create a property interest

in Hardison’s employment. Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.

1983); Ogletree v. Chester, 682 F.2d 1366, 1369 (11th Cir. 1982); United

Steelworkers of Am., AFL-CIO v. Univ. of Ala., 599 F.2d 56, 59-61 (5th Cir.

1979). Hardison also did not plead a breach of contract claim, under state law, and

at oral argument his counsel conceded that he did not seek relief under state law. 

This argument, therefore, fails.

Although it did not distinguish between Hardison’s requests for legal and

equitable relief, the district court properly dismissed Hardison’s complaint for

both forms of relief. We may, of course, affirm the judgment of the district court

on any ground that finds support in the record. Lucas v. W.W. Grainger, Inc., 257

F.3d 1249, 1256 (11th Cir. 2001). As to Hardison’s request for equitable relief,

we need not decide, as the district court found, that the remedial scheme of Title

38 bars Hardison’s claim, because the record establishes that Hardison did not

have a property interest in his employment.

IV. CONCLUSION

Hardison’s Bivens claim for money damages is barred by the remedial

provisions of Title 38, and because Hardison did not have a property interest in his

former position protected by the Constitution, he cannot state a claim for equitable
18

relief. The judgment of the district court, which dismissed Hardison’s complaint

for failure to state a claim, is

AFFIRMED.