Id. at 173-74. In Williams v. IRS, 745 F.2d 702 (D.C. Cir. 1984), we refused to dismiss a First Amendment claim by an excepted service employee not covered by the procedures of the CSRA other than resort to the OSC. Reiterating our interpretation of Bush as foreclosing only those constitutional claims for which Congress afforded a "meaningful" statutory remedy, we found Borrell to be "the most instructive precedent" and expressly distinguished Bush because "Williams is differently situated [from Bush]; he has no CSRA-conferred guarantee of an administrative adjudication outside the Service or of direct court review." Id. at 705.
In Bartel v. FAA, 725 F.2d 1403 (D.C. Cir. 1984), briefed before the decision in Bush, we vacated and remanded the district court's entry of summary judgment against Bartel on her claim for injunctive and monetary relief. Rather than draw speculative inferences from the plaintiff's pro se complaint, we instructed the district court to determine "which [Bartel's] alleged violations are administratively remediable and hence barred in this case" under Bush. 725 F.2d at 1415 n. 21. Bartel left open the very issue we decide today. Williams v. IRS, 745 F.2d 702 (D.C. Cir. 1984) (per curiam), Krodel v. Young, 748 F.2d 701 (D.C. Cir. 1984), cert. denied, ___ U.S. ___, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985), and Reuber v. United States, 750 F.2d 1039 D.C. Cir. 1984) likewise address different issues. In Williams, we reversed the dismissal of a first amendment claim, but stressed that the plaintiff was seeking only declaratory and injunctive relief not "damages as a substitute for or supplement to civil service remedies."
On appeal, we held that the suspension did not violate Williams's statutory or due process rights. Williams v. IRS, 745 F.2d 702, 704 (D.C. Cir. 1984) (per curiam) ( "Williams I"). We remanded the case, however, for a determination as to whether Williams had a "`serious' free association claim."
See Fausto v. United States, 783 F.2d 1020, adhered to, reh. denied, 791 F.2d 1554, 1556 (Fed. Cir. 1986), cert. granted, ___ U.S. ___, 107 S.Ct. 872, 93 L.Ed.2d 827 (1987). Cf. Williams v. IRS, 745 F.2d 702, 704 (D.C. Cir. 1984) (per curiam) (interpreting 5 U.S.C. § 7501(1), which applies to suspensions of 14 days or less). Harrison's supervisor Grinstead evidently believed that she was covered under § 4303(a)-(d).
That conclusion, we suggest, is central to the holding in Bush. See Williams v. IRS, 745 F.2d 702, 705 (D.C.Cir. 1984) (per curiam). Guided by Bush, then, we view the question before us to be whether the congressional and administrative remedies provided for Kotarski as a probationary employee are sufficient to give meaningful protection to his constitutional rights.
Finally, Robbins relies on three cases, Krueger v. Lyng, 927 F.2d 1050 (8th Cir. 1991), Schowengerdt v. General Dynamics Corp., 823 F.2d 1328 (9th Cir. 1987), and Williams v. Internal Revenue Service, 745 F.2d 702 (D.C. Cir. 1984), to suggest that where the CSRA has not provided a complete remedy, a Bivens action should be appropriate. That reliance is wholly misplaced.
On the contrary, time 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.See, e.g., Hubbard v. EPA, 809 F.2d 1, 11 (D.C. Cir. 1986); Williams v. IRS, 745 F.2d 702, 705 (D.C. Cir. 1984); Cutts v. Fowler, 692 F.2d 138, 140-41 (D.C. Cir. 1982); Borrell v. United States Int'l Comm. Agency, 682 F.2d 981, 989-90 (D.C. Cir. 1982). Of course, to the extent any of these cases indicates that civil service employees may pursue Bivens remedies for the same violations, they are hereby disapproved.
Bush, 462 U.S. at 385 n. 28, 103 S.Ct. at 2415 n. 28. Even viewed in the light most favorable to Moon, the conduct of Moon's supervisors in directing him to file a false or misleading report does not fall within the general nature of the criminal and outrageous conduct exceptions set out in Bush to justify a judicial, rather than an administrative, remedy. Moon also cites Bishop v. Tice, 622 F.2d 349 (8th Cir. 1980); Sonntag v. Dooley, 650 F.2d 904 (7th Cir. 1981); Egger v. Phillips, 710 F.2d 292 (7th Cir.), cert, denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983); and Williams v. IRS, 745 F.2d 702 (D.C. Cir. 1984). We shall examine those cases briefly.
Suffice it to say that I would decline to extend the Bush holding to bar a Bivens action by a federal employee who has no statutory forum, including judicial review, for her constitutional claims. Cf. Williams v. IRS, 745 F.2d 702, 706 (D.C. Cir. 1984) (per curiam) (declining to impose Bush as a bar to an action by a federal employee in part because the employee did not enjoy substantive or procedural protections under the relevant civil service law). [82] MacKINNON, Senior Circuit Judge (dissenting in part and concurring in part):
This court later adopted Justice Marshall's position in holding that the district court must consider a civil servant's Bivens claims arising from conduct not administratively remediable by the Merit Systems Protection Board. See Bartel v. Federal Aviation Administration, 725 F.2d 1403, 1415 n. 21 (D.C. Cir. 1984); see also Williams v. I.R.S., 745 F.2d 702 at 705 (D.C. Cir. 1984). Moreover, it is clear that Reuber's defamation action should not be a special factor in this case since it is not a substitute to redress the constitutional wrongs that he alleges.