Bedrossian, Carlos v. Northwestern Univ ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3683
CARLOS BEDROSSIAN, M.D.,
Plaintiff-Appellant,
v.
NORTHWESTERN MEMORIAL
HOSPITAL, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 03 C 3418—John F. Grady, Judge.
____________
ARGUED FEBRUARY 11, 2005—DECIDED MAY 31, 2005
____________
Before BAUER, POSNER, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Carlos Bedrossian, M.D., claims
that his employment with Northwestern University was ter-
minated in violation of the Uniformed Services Employment
and Reemployment Rights Act (“USERRA”) and the False
Claims Act. The district court denied his request for prelim-
inary relief enjoining Northwestern from firing him. Because
a showing of irreparable harm is required for preliminary
injunctive relief under both statutes, and Bedrossian cannot
make the requisite showing, we affirm the decision of the
district court.
2 No. 03-3683
I. History
Carlos Bedrossian, M.D., is a physician specializing in
cytopathology, which means that he studies the effects of
disease on a cellular level. He had practiced medicine for
roughly thirty years when, in 1997, he was hired by North-
western University as a professor in the Feinberg School of
Medicine’s Department of Pathology and as director of the
cytopathology service within Northwestern Memorial
Hospital (“the Hospital”). On commencing employment with
Northwestern, Bedrossian also became a member of the
Northwestern Medical Faculty Foundation, Inc. (“the
Foundation”), a clinical practice group that employs physi-
cian members who have full-time faculty appointments at the
Medical School and clinical practice privileges at the
Hospital. Northwestern originally gave Bedrossian a non-
tenure eligible, five-year renewable appointment. This
original appointment expired in August 2002 and was then
renewed for one additional year—with warning that it
would not be renewed beyond August 2003.
Bedrossian also has a military career spanning over twen-
ty years. As a colonel in the Medical Corps of the United
States Air Force Reserve, he was obligated to spend 13-14
weekdays per year lecturing and one weekend per month
providing medical services for the Air Force. Northwestern
initially told Bedrossian that he would receive three to four
weeks of paid military leave per year to fulfill these obliga-
tions. The arrangement was apparently satisfactory to both
sides until 2001, when Bedrossian claims that several
physicians began to harass him because of his military
service.
One other fact is pertinent to Bedrossian’s claims: in
August 2001, he filed a qui tam complaint against the
Hospital and the Foundation alleging billing practices in
violation of the Federal False Claims Act, 31 U.S.C. § 3729.
The government conducted an investigation, and
No. 03-3683 3
Bedrossian claims that in April 2002 the Hospital told him
(presumably through one of its agents) that it knew he was
the reason for this investigation. The United States for-
mally declined to intervene in the action in August 2002.
According to Bedrossian, his termination from
Northwestern (or, more accurately, the August 2003 non-
renewal of his appointment) was based on his employer’s
contempt for his military service and in retaliation for filing
the qui tam complaint. On May 21, 2003, he filed a lawsuit
against the Hospital, the Medical School, the Foundation,
and several individual Northwestern physicians alleging
violations of both USERRA and the False Claims Act. Along
with other relief, Bedrossian sought a preliminary in-
junction restraining the defendants from terminating his
employment.
The district court denied the injunction, finding that
Bedrossian was unable to make the showing of irreparable
harm necessary for such relief. Bedrossian appeals, arguing
that neither USERRA nor the False Claims Act requires a
showing of irreparable harm. He also asserts that, if such
a showing is required, his is the type of extraordinary case
in which irreparable harm would result without prelimi-
nary relief.
II. Analysis
Whether USERRA or the False Claims Act requires a
showing of irreparable harm to obtain preliminary injunc-
tive relief is a question of law which we review de novo. See
Kiel v. City of Kenosha, 236 F.3d 814, 815 (7th Cir. 2000).
An injunction is an equitable remedy that does not issue as
a matter of course, but rather a remedy that courts may
grant at their discretion in the extraordinary situations
where legal remedies such as monetary damages are
inadequate. See, e.g., Weinberger v. Romero-Barcelo, 456
U.S. 305, 311-12 (1982); City of Harrisonville v. W.S. Dickey
4 No. 03-3683
Clay Mfg. Co., 289 U.S. 334, 337-38 (1933). The Supreme
Court’s decision in Romero-Barcelo sets forth the test for
determining whether Congress has limited the court’s
discretion by enacting a statute eliminating the tradition-
ally required showing of irreparable harm for preliminary
injunctive relief.
“Unless a statute in so many words, or by a necessary and
inescapable inference, restricts the court’s jurisdiction in
equity, the full scope of that jurisdiction is to be recognized
and applied.” Romero-Barcelo, 456 U.S. at 313 (quoting
Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)).1 In
other words, unless a statute clearly mandates injunctive
relief for a particular set of circumstances, the courts are to
employ traditional equitable considerations (including
irreparable harm) in deciding whether to grant such relief.
See Romero-Barcelo, 456 U.S. at 313, 317-18 (holding that
the Federal Water Pollution Control Act did not require the
district court to enjoin the navy from discharging ordnance
into water surrounding Puerto Rico because the statute did
1
Bedrossian cites Illinois Bell Telephone Co. v. Illinois Commerce
Commission, 740 F.2d 566, 571 (7th Cir. 1984), for the proposition
that “where the plaintiff seeks an injunction to prevent the vio-
lation of a federal statute that specifically provides for injunctive
relief, it need not show irreparable harm.” This broad interpre-
tation of Illinois Bell is not the law; countless decisions (including
Romero-Barcelo) have required a showing of irreparable harm
under statutes that specifically provide for injunctive relief. As the
D.C. Circuit recently stated, Illinois Bell and cases like it show
that “if a statute confers a right to an injunction once a certain
showing is made, no plaintiff . . . need show more than the statute
specifies.” United States v. Microsoft Corp., 147 F.3d 935, 943
(1998) (emphasis in original). The statute at issue in Illinois Bell
was the Communications Act, which states that a court “shall
enforce obedience to [an FCC] order by a writ of injunction or
other proper process” upon a showing of disobedience. 47 U.S.C.
§ 401(b) (emphasis added).
No. 03-3683 5
not unequivocally indicate congressional intent to limit the
courts’ traditional equitable discretion); cf. TVA v. Hill, 437
U.S. 153 (1978) (holding that the Endangered Species Act
required the district court to enjoin construction of the
Tellico Dam in order to preserve the snail darter because
the statute expressly limited the remedies available to
accomplish its objectives). We turn to the relevant language
of both USERRA and the False Claims Act to determine
whether either statute dispenses with a showing of irrepa-
rable harm as a prerequisite to injunctive relief.
USERRA states in its enforcement provision that “[t]he
court may use its full equity powers, including temporary or
permanent injunctions, temporary restraining orders, and
contempt orders, to vindicate fully the rights or benefits of
persons under this chapter.” 38 U.S.C. § 4323(e). This
language does not dispense with the requirement of a
showing of irreparable harm “in so many words.” On the
contrary, the provision regarding injunctions is phrased in
permissive rather than mandatory terms (“the court may
use its full equity powers”), suggesting that the courts should
exercise discretion and not consider themselves bound to
grant injunctions as an exclusive remedy. Prompting the
courts to use their full equitable powers, similarly, suggests
that the normal rules of equity should apply—including
proof of irreparable harm.
Moreover, we are not persuaded that the text, legislative
history, and purpose of USERRA support a “necessary and
inescapable” inference that Congress intended for plaintiffs
under that statute to obtain preliminary relief without
showing irreparable harm. USERRA was enacted in 1994
pursuant to the War Powers Clause2 to encourage nonca
2
U.S. Const. art. I, § 8, cl. 11. Bedrossian’s argument notwith-
standing, the constitutional power used by Congress in enacting
(continued...)
6 No. 03-3683
reer military service, to minimize disruptions in the lives
and communities of those who serve in the uniformed ser-
vices, and to prohibit discrimination against people because
of their service. 38 U.S.C. § 4301. Reserve health profes-
sionals such as Bedrossian, who also have civilian careers,
are undoubtably vital to the United States military. Congress
sought to “minimiz[e] the disadvantages to civilian careers
and employment which can result from [service in the
uniformed services]” by allowing a complainant (or the
Attorney General, on the complainant’s behalf) to sue an
employer who has “failed or refused, or is about to fail or
refuse, to comply with the provisions of [USERRA.]” 38
U.S.C. §§ 4301, 4322.
The inference that injunctive relief is required to accom-
plish these goals is not “necessary and inescapable.” Other
employment statutes, including Title VII, the Americans
with Disabilities Act (“ADA”), and the Age Discrimination
in Employment Act (“ADEA”) contain similar statements of
ambitious congressional purpose. See 29 U.S.C.
§ 621(a)(1)(b) (stating that the purpose of the ADEA is to
“prohibit arbitrary age discrimination in employment”);
42 U.S.C. § 12101(a) (stating that the purpose of the ADA
is “to provide a clear and comprehensive national mandate
for the elimination of discrimination against individuals
with disabilities”); Veprinsky v. Fluor Daniel, Inc., 87 F.3d
881, 889 (7th Cir. 1996) (stating that Congress’s objective in
passing Title VII was to “remove barriers” against minority
employees). In effectuating the congressional intent behind
2
(...continued)
USERRA is irrelevant here. The constitutionality of the statute is
not in question; we must simply ascertain Congress’s intent with
respect to preliminary injunctive relief. It is perfectly appropriate
to consider precedents on similar enforcement provisions in
statutes passed pursuant to other constitutional powers in
answering this question.
No. 03-3683 7
these statutes, courts have nevertheless required a showing
of irreparable harm before granting preliminary injunctions.
See, e.g., Washington v. Ind. High Sch. Athletic Ass’n, 181
F.3d 840, 845 (7th Cir. 1999) (ADA); Hetreed v. Allstate Ins.
Co., 135 F.3d 1155, 1158 (7th Cir. 1998) (Title VII); Gately
v. Massachusetts, 2 F.3d 1221, 1224 (1st Cir. 1993) (ADEA).
We agree with the district court that there is “no material
difference between the Congressional policy underlying
[USERRA], as expressed in the statutory language, and
other employment discrimination statutes . . . that require
a showing of irreparable harm as a predicate for prelimi-
nary relief.”
We next address Bedrossian’s argument that the “about
to harm” language in USERRA implies elimination of the
irreparable harm requirement because it would be impossi-
ble to show irreparable harm when the employer is merely
threatening to disobey the law. In most preliminary in-
junction proceedings, the irreparable harm that one must
prove has not yet taken place, because the plaintiff is trying
to enjoin actions that have not yet been taken. Like most
other plaintiffs, a USERRA plaintiff has standing to seek a
preliminary injunction when irreparable harm is imminent.
There is no “necessary and inescapable” inference dispens-
ing with proof of irreparable harm, and we believe that
Congress’s intent can be accomplished through remedies
other than preliminary injunction.
We move on to Bedrossian’s claim of retaliation under the
False Claims Act, which provides in relevant part:
Any employee who is discharged, demoted, suspended,
threatened, harassed, or in any other manner discrimi-
nated against in the terms and conditions of employment
by his or her employer because of lawful acts done by
the employee on behalf of the employee or others in
furtherance of an action under this section, including
investigation for, initiation of, testimony for, or assis-
8 No. 03-3683
tance in an action filed or to be filed under this section,
shall be entitled to all relief necessary to make the
employee whole. Such relief shall include reinstatement
with the same seniority status such employee would
have had but for the discrimination, 2 times the amount
of back pay, interest on the back pay, and compensation
for any special damages sustained as a result of the
discrimination, including litigation costs and reasonable
attorneys’ fees.
31 U.S.C. § 3730(h). Rather than disposing of the irrepara-
ble harm requirement “in so many words,” this language
actually supports the position that the customary equitable
considerations should be made. There is no mention of
preliminary relief, and the statute specifically discusses
monetary damages and reinstatement as remedies that can
make a plaintiff whole.
While Congress clearly passed this provision to protect
“whistleblowers,” a “necessary and inescapable” inference
that preliminary injunctions without proof of irreparable
harm flow from the False Claims Act does not follow. Many
other federal statutes contain provisions to protect from
retaliation individuals who expose violations to the govern-
ment. See, e.g., 42 U.S.C. § 2000e-3 (Title VII); 29 U.S.C.
§ 623(d) (ADEA); 42 U.S.C. § 12203 (ADA). As discussed
above, these statutes still require proof of irreparable harm
for preliminary injunctive relief.
Our conclusion that Congress did not intend to dispense
of the irreparable harm requirement in either USERRA or
the False Claims Act is bolstered by the same rationale that
has made the requirement a firmly entrenched prerequisite
for preliminary relief. “[T]he traditional function of equity
has been to arrive at a ‘nice adjustment and reconciliation’
between the competing claims[.]” Romero-Barcelo, 456 U.S.
at 312 (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329
(1944)). The irreparable harm requirement helps the courts
No. 03-3683 9
weigh the costs of denying a preliminary injunction to a
plaintiff who goes on to win on the merits against the costs
of granting the injunction to one who goes on to lose. Roland
Mach. Co. v. Dresser Indus., 749 F.2d 380, 388 (7th Cir.
1984). This balancing seems especially wise in an employ-
ment case such as Bedrossian’s. Should he prevail on the
merits of his suit, damages will make up what he has
presumably lost during unemployment. See Hetreed, 135
F.3d at 1158. On the other hand, Northwestern would not
be likely to recoup the losses it might incur were it errone-
ously forced to employ Bedrossian while this lawsuit is
resolved on the merits, including his salary and reduced
productivity. See id.
Having concluded, as the district court did, that both
USERRA and the False Claims Act require showings of ir-
reparable harm for preliminary injunctive relief, we review
the district court’s finding that Bedrossian could not satisfy
this requirement for abuse of discretion. Outsource Int’l,
Inc. v. Barton, 192 F.3d 662, 666 (7th Cir. 1999). Under this
standard, we reverse only “where no reasonable person
could take the view adopted by the [district] court.” Har-
rington v. DeVito, 656 F.2d 264, 269 (7th Cir. 1981).
The Supreme Court set a high standard for obtaining
preliminary injunctions restraining termination of employ-
ment in Sampson v. Murray, 415 U.S. 61 (1974). Although
it did not “foreclose[] relief in the genuinely extraordinary
situation,” the type of irreparable injury required must
really depart from the harms common to most discharged
employees. Id. at 92 & n.68. The plaintiff in Sampson al-
leged humiliation, damage to reputation, and loss of income
due to her purportedly wrongful termination from federal
employment. Id. at 92. The Court held that these injuries
did not rise to the level of an extraordinary termination of
employment situation, and that they were not “irreparable”
to warrant a preliminary injunction. See id.
10 No. 03-3683
The “irreparable harms” of lost income and damaged repu-
tation alleged by Bedrossian are quite similar to those in
Sampson and in fact typical of the injuries involved in any
employment case. We have consistently held that physi-
cians are awarded no special treatment under Sampson
even when, like Bedrossian, they assert that termination
will cause a “deterioration in skills.” See Roth v. Lutheran
Gen. Hosp., 57 F.3d 1446, 1460 (7th Cir. 1995); Dos Santos
v. Columbus-Cuneo-Cabrini Med. Ctr., 684 F.2d 1346, 1349
(7th Cir. 1982). Likewise, inability to find another job,
which Bedrossian has claimed,3 is not irreparable harm. See
Roth, 57 F.3d at 1460. The district court did not abuse its
discretion in concluding that Bedrossian failed to show the
irreparable harm required for a preliminary injunction
against Northwestern.
III. Conclusion
In sum, neither USERRA nor the False Claims Act
permits Bedrossian to obtain preliminary injunctive relief
without a showing of irreparable harm. Because he cannot
show irreparable harm under the Sampson standard, we
AFFIRM the district court’s denial of a preliminary injunction
prohibiting Northwestern from terminating Bedrossian’s
employment.
3
Bedrossian has not offered any evidence that he applied un-
successfully for other positions or that Northwestern’s failure to
reappoint him was the reason for any rejection. Even if unem-
ployability could be considered an irreparable injury, he has not
presented adequate facts to make this more than a “speculative”
harm. See Singer Co. v. P.R. Mallory & Co., 671 F.2d 232, 235 (7th
Cir. 1982).
No. 03-3683 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-31-05