connection with his transfer, either individually or collectively.
19. Plaintiff also offered the testimony of two HUD employees regarding
conversations they had with defendant Cummings in which plaintiff and the
role he played in Cummings' transfer were discussed.
20. Plaintiff offered no evidence regarding any contact defendant
Cummings had with any of the other defendants with whom he is alleged to
have conspired to effect plaintiff's transfer.
21. Plaintiff also offered no evidence of any contact between defendant
Cummings and Gordon Walker, Deputy Under Secretary for Field
Coordination, the HUD official primarily responsible for the decision to
22. Defendants offered the testimony of Gordon Walker. Walker testified
that he has never met Cummings nor spoken to him on the telephone. Walker
has never had any communication of any nature with Cummings regarding
23. Walker decided to transfer plaintiff because Alfred Moran, Regional
Administrator, Region V, had expressed some dissatisfaction with
plaintiff. Plaintiff's transfer was effected as part of a three-way move
whereby plaintiff was transferred to Seattle, a Seattle employee was
transferred to Fort Worth, Texas, and a Fort Worth employee was
transferred to Chicago. The Regional Administrators for all three regions
had made known to Walker their problems with these employees and Walker
saw this as an opportunity to solve all three problems.
24. Walker further testified that plaintiff's lack of experience in the
technical aspects of debt collection had no impact upon his decision to
transfer plaintiff to the newly created Debt Management Unit in Seattle.
In Walker's opinion, a managerial employee at the GS-15 level is
qualified to manage any aspect of HUD operations. Effective management
does not require a working knowledge of the technical area supervised.
25. To the extent that any of the foregoing findings of fact are deemed
to be conclusions of law, they are hereby adopted as conclusions of law.
Of the above and foregoing findings of fact, the Court makes the
following conclusions of law:
1. As a general rule, a preliminary injunction will not lie to restrain
a federal agency from taking a personnel action against an employee.
Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974);
Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974).
2. Assuming for the sake of argument that jurisdiction does exist,
plaintiff has nonetheless failed to satisfy the traditional prerequisites
to preliminary injunctive relief, particularly, a likelihood of success
on the merits and irreparable injury. Machlett Laboratories, Inc. v.
Techny Industries, 665 F.2d 795, 796-97 (7th Cir. 1981).
3. The materials produced by the OSC in response to a Freedom of
Information Act request filed by plaintiff reveal that the OSC conducted
a thorough and impartial investigation into the circumstances of
plaintiff's transfer. That investigation revealed that the HUD officials
responsible for effecting plaintiff's transfer had no contact with and
were in no manner influenced by defendant Cummings in their decision.
Plaintiff's testimony at the preliminary injunction hearing added nothing
of substance to his claims. Plaintiff offered no evidence at all to
support his claims that his transfer was racially motivated or effected
in an attempt to discourage his aggressive pursuit of the programs under
his jurisdiction. Therefore, plaintiff has failed to establish a
likelihood of success on the merits.
4. In addition, the injury attendant to plaintiff's involuntary
transfer, while not insubstantial, is insufficient to override the
"factors cutting against the general availability of preliminary
injunctions in government personnel cases." Sampson v. Murray, 415 U.S. 61,
84, 94 S.Ct. 937, 950, 39 L.Ed.2d 166 (1974). Specifically, the
inconvenience and expense that will necessarily
be incurred by plaintiff in relocating to Seattle are insufficient to
satisfy plaintiff's burden of proving irreparable injury. Gilley v.
United States, 649 F.2d 449 (6th Cir. 1981); Stromfeld v. Smith,
557 F. Supp. 995 (S.D.N.Y. 1983).
5. Moreover, in the event that plaintiff refuses to report for Seattle
and, as a result, is terminated by HUD, he will at that time have
available to him all the appeal rights provided for in cases of adverse
6. Because plaintiff cannot satisfy the prerequisites to preliminary
injunctive relief, his motion must be denied.
7. To the extent that any of the foregoing conclusions of law are
deemed to be findings of fact, they are hereby adopted as findings of
Accordingly, plaintiff's motion for preliminary injunction is denied.
IT IS SO ORDERED.
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