dissenting:
For what each man wishes, that he also believes to be true.
Demosthenes, Third Olynthiac § 19 (J. Vince trans. 1930).
The majority believes that central to the holding of the Supreme Court’s decision in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) is the proposition that the remedies provided by Congress for federal employees must give “meaningful protection to ... constitutional rights.” Op. at 1347. In the majority’s opinion, “meaningful remedies” include only remedies where the employee has an “enforceable right,” a right to judicial review, or the “right of participation in the process of investigation and decision.” Op. at 1348. Because the majority believes that the remedies available to Kotarski after losing his temporary promotion are not “meaningful” and because the majority also believes that Bush requires such remedies, it concludes that Kotarski is entitled to a full damage remedy in federal court for loss of his temporary promotion if he can prove that his reduced status was effected in violation of constitutional rights. This remedy is available to Kotarski even though employees demoted after receiving permanent promotions in violation of their constitutional rights have no private damage action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and are limited to the administrative avenues of the civil service system. Bush, 462 U.S. at 388-90, 103 S.Ct. at 2416-17.
The court in Bush held that a federal employee who was demoted allegedly in violation of his first amendment rights was not entitled to a private damage remedy under Bivens. The majority’s belief that the focus of Bush is upon the nature of the remedies provided by Congress is not supported by a reading of the case. Time and time again in Bush the Court underscored that the basis of its decision centered on the significant problems of judicial review of federal personnel decisions coupled with the fact that Congress is in a better position to strike a balance between the need for efficient government employees and the need to protect the rights of those employees. These concerns constituted “special factors counselling hesitation [in the creation of a damage remedy] in the absence of affirmative action by Congress.” Bivens, 403 U.S. at 396, 91 S.Ct. at 2004.
The Court punctuated its decision in Bush by repeated disclaimers that the nature of the congressionally prescribed remedies did not underlie its rationale. At the outset, the Court explained that the meaning of the phrase “special factors counsel-ling hesitation” first appearing in Bivens was illustrated by its prior decisions in United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 *1352(1947) and United States v. Gilman, 347 U.S. 507, 74 S.Ct. 695, 98 L.Ed. 898 (1954). In Standard Oil, the Court refused the government’s request for a new damage remedy against a tortfeasor responsible for injuries to a soldier. The Court reasoned that Congress, “the custodian of the national purse,” and not the courts should bear the responsibility for fashioning national fiscal policy. Standard Oil, 332 U.S. at 314, 67 S.Ct. at 1611. In Gilman, the Court refused to allow the government to seek indemnification from one of its employees responsible for creating federal liability under the FTCA. The Court in Gilman noted that the creation of an indemnification remedy would significantly affect the relationship between the government and its employees, impacting employee efficiency and morale as well as federal fiscal policy. Gilman, 347 U.S. at 510, 74 S.Ct. at 697. Gilman held that Congress was in a better position than the courts to fashion such a remedy. Id. at 511, 74 S.Ct. at 697.
Bush held that the Standard Oil and Gilman decisions demonstrated that the “special factors” inquiry focuses on which branch of government should decide whether a remedy should be provided.
The special factors counselling hesitation in the creation of a new remedy in Standard Oil and Gilman did not concern the merits of the particular remedy that was sought. Rather, they related to the question of who should decide whether such a remedy should be provided. We should therefore begin by considering whether there are reasons for allowing Congress to prescribe the scope of relief that is made available to federal employees whose First Amendment rights have been violated by their supervisors.
Bush, 462 U.S. at 380, 103 S.Ct. at 2412.
The Supreme Court in Bush stated further:
The question is not what remedy the court should provide for a wrong that would otherwise go unredressed. It is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue. That question obviously cannot be answered simply by noting that existing remedies do not provide complete relief for the plaintiff. The policy judgment should be informed by a thorough understanding of the existing regulatory structure and the respective costs and benefits that would result from the addition of another remedy for violations of employees’ First Amendment rights.
Thus, we do not decide whether or not it would be good policy to permit a federal employee to recover damages from a supervisor who has improperly disciplined him for exercising his First Amendment rights. As we did in Standard Oil, we decline “to create a new substantive legal liability without legislative aid and as at the common law,” 332 U.S., at 302 [67 S.Ct. at 1605] because we are convinced that Congress is in a better position to decide whether or not the public interest would be served by creating it.
Id. at 388-90, 103 S.Ct. at 2416-17.1
As the majority notes, Bush involved a demotion of a nonprobationary federal employee. In Pinar v. Dole, 747 F.2d 899 (4th Cir.1984), cert. denied, 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d 301 (1985), the Fourth Circuit held that the Congressional remedial scheme for federal employees losing temporary promotion was constitutionally adequate, and no Bivens remedy was required. The majority’s position today creates a direct conflict with Pinar. I agree with the Fourth Circuit and with the district court in this case that Bush pre-*1353eludes a Bivens remedy for probationary employees as well.
Under current law, Congress has defined a “prohibited personnel action” as any action that is a reprisal for “a disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences a violation of any law, rule, or regulation....” 5 U.S.C. § 2302(b)(8). Congress enacted provisions like section 2302 so that an action taken by a supervisor “against an employee ... without having proper regard for the individual’s privacy or constitutional rights ... could result in dismissal, fine, reprimand, or other discipline for the supervisor.” S.Rep. No. 95-969, 95th Cong., 2d Sess., reprinted in 1978 U.S. Code, Cong. & Admin.News at 2745 (emphasis added). Charges of prohibited practices are investigated by the Office of the Special Counsel which may recommend corrective action to the agency. 5 U.S.C. § 1206(a)-(c). If the agency fails to implement the recommended corrective action, the Special Counsel may request the Merit Systems Protections Board to consider the matter, and the Board may in turn order corrective action. 5 U.S.C. § 1206(c)(1)(B). Further, the Congressional scheme allows the Special Counsel to request, and the Board to grant, stays of personnel actions the Special Counsel reasonably believes were taken as the result of prohibited practices.
With this remedial system in place, Ko-tarski cannot claim that “it is damages or nothing.” Bivens 403 U.S. at 410, 91 S.Ct. at 2011 (Harlan, J., concurring). Congress has enacted a scheme carefully tailored to balance the many competing concerns implicated in regulating federal employment and has chosen this remedial mechanism over a system allowing litigation between federal employees over employment-related discipline. In crafting the system, Congress has decided that different levels of protection are required for rights of differing magnitude. For demotion or termination of non-probationary employees, the full complement of administrative remedies discussed in Bush is available. For less severe personnel actions such as a termination of a probationary promotion, Congress has determined that review by the Special Counsel and in certain cases by the Board sufficiently deters constitutionally impermissible personnel decisions while maintaining morale and efficiency. Bush has stated that Congress is in the better position to decide whether a damage remedy is appropriate. Congress has decided that it is not, and I agree with the Fourth Circuit that Congress’ decision precludes a Bivens remedy here. See Pinar, 747 F.2d at 911 and n. 9. See also Crumpler v. Etter, 579 F.Supp. 391, 392 (E.D.N.C.1983); Watson v. United States, 576 F.Supp. 580, 585-86 (N.D.Ill.1983); Francisco v. Schmidt, 575 F.Supp. 1200, 1202-03 (E.D.Wis.1983).
This is not a case in which Congress has expressly decided to provide no remedy at all or where Congress has failed to consider the need to remedy constitutionally proscribed conflict in the context of federal employment. The majority seems to view this case as a “no remedy” case or at least a “meaningless remedy” case, basing its conclusion on the fact that Kotarski cannot force the Special Counsel to take action or to bring the matter to the attention of the Board, that he cannot seek judicial review or that he cannot participate directly in the investigation.2 I find no support in Bush or Bivens for any of these requirements. The majority concedes that the Congres-sionally-supplied remedy need not be coterminous with a Bivens remedy, and with that much I agree. I agree with Pinar, however, that the procedures provided for the loss of a temporary promotion are constitutionally adequate.
Congress has made a considered judgment that the remedies provided for the loss of a temporary promotion are sufficient to protect the rights of federal em*1354ployees while maintaining the appropriate levels of efficiency and morale in both the supervisors and the supervised. The Supreme Court has decided that Congress is in the best position to make this decision and that, when it has done so, the courts should not interfere with the balance Congress has struck. The majority may wish that Congress had done more — but that is not enough.
I dissent.
. Only two justices took the position that the congressionally-adopted remedy should approximate Bivens relief. See Bush, 462 U.S. at 390-92, 103 S.Ct. at 2417-18 (Marshall, J., concurring).
. Of course, the employee does participate to the extent that he provides the Special Counsel with the facts underlying his claim and to the extent he is required to respond to the Special Counsel’s inquiries,