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WATSON v. U.S. DEPT. OF HOUSING AND URBAN DEV.

December 28, 1983

LOUCIENE WATSON, PLAINTIFF,
v.
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Bua, District Judge.

  MEMORANDUM AND ORDER

On August 15, 1983, Louciene Watson filed this six-count complaint against his employer, the United States Department of Housing and Urban Development ("HUD") and various supervisory personnel also employed by HUD. The complaint charges HUD and its officials with unlawfully transferring Watson from his position as HUD Regional Director of the Office of Fair Housing in Chicago to the position of Director of Debt Management at the HUD Regional Office in Seattle. On August 19, 1983, Watson filed a motion for a preliminary injunction seeking a stay of his proposed transfer to Seattle. After a hearing on August 29, 1983, the Court denied Watson's motion due to his failure to establish a reasonable likelihood of success on the merits and irreparable injury. Watson v. U.S. Dept. of Housing and Urban Development, et al., 569 F. Supp. 846 at 848 (N.D.Ill. 1983).

Presently before the Court is defendants' motion to dismiss the complaint for lack of jurisdiction and failure to state a claim upon which relief can be granted. For the reasons stated below, defendants' motion to dismiss is granted and Watson's complaint is hereby dismissed.

I. FACTS

The following facts are alleged in Watson's complaint. For purposes of this motion, the Court assumes they are true. City of Milwaukee v. Saxbe, 546 F.2d 693, 704 (7th Cir. 1976).

Between 1973 and June 6, 1983, Watson was employed at the HUD Chicago Regional Office as the Director of the Office of Fair Housing. In September of 1981, defendant James Cummings was appointed as Administrator of HUD's Chicago Regional Office. Soon after his appointment, Cummings was investigated by the Office of Special Counsel ("OSC") regarding charges that Cummings wrongfully transferred certain HUD employees to Indianapolis (hereinafter the "Cummings investigation"). Watson was interviewed by the OSC during the Cummings investigation and later testified before an Administrative Law Judge. In 1982, Cummings was transferred from the Chicago Regional Office to the position of Director, Office of Voluntary Compliance at the HUD central office in Washington, D.C.

Although Watson was consistently rated "above average or higher" in his job performance at Chicago, Watson "became aware of several rumors" that Cummings "would get Watson" because of Watson's testimony before the Administrative Law Judge. In late 1982, Watson and other HUD employees who testified before the Administrative Law Judge heard rumors that they would be transferred because of their testimony against Cummings. After Cummings obtained a favorable ruling from the Administrative Law Judge in April of 1983, Watson again heard rumors that his transfer to Seattle was imminent. During the Spring of 1983, Cummings again told several persons that he would "get Watson" because of Watson's testimony before the Administrative Law Judge.

On June 6, 1983, Watson received a letter from defendant Judith Tardy, Assistant Secretary of HUD, informing Watson that he would be transferred to the position of Director, Debt Management, at the Seattle Regional Office at the same pay level and grade as his Chicago position, effective July 10, 1983. The next day Watson received a letter informing him that he was temporarily assigned to the position of Special Assistant to the Regional Administrator pending his transfer to Seattle.

  On June 13 or 14, 1983, Watson filed a complaint with the OSC
alleging that his reassignment to the Seattle office was
punishment in retaliation for testimony given to the OSC. On
August 3, 1983, the OSC concluded:

   . . [N]o prohibited personnel practice occurred in
  this matter. Rather, the investigation showed that
  the reassignment was a legitimate HUD management
  decision made in connection with the rotation of two
  other employees, one of whom will be relocated to
  Chicago.

Plaintiff's Supplemental Affidavit filed August 26, 1983, at Exhibit 8.

In his six-count complaint before this Court, Watson predicates defendants' liability upon several legal theories. Count I charges that defendants, by transferring Watson to Seattle, violated 5 U.S.C. § 2301(b)(2), (8);*fn1 5 U.S.C. § 2302(b)(8);*fn2 and the due process clause of the fifth amendment to the United States Constitution. Count II alleges that defendants, in violation of Watson's first amendment rights, transferred Watson to Seattle as punishment for Watson's cooperation with the Cummings investigation. Counts III, IV and V charge that defendants, in violation of 42 U.S.C. § 1985(1), (3) and 1986, conspired to intimidate Watson and wrongfully prevent him from discharging his duties as Director of the Regional Office of Fair Housing and Equal Opportunity. Count VI charges that defendants, in violation of 42 U.S.C. § 3617,*fn3 intimidated Watson on account of his efforts to aggressively enforce the Fair Housing Act, 42 U.S.C. § 3601 et seq. Watson seeks injunctive relief restoring him to his position in Chicago, actual damages in the amount of $500,000.00 and punitive damages in the amount of $250,000.00.

II. DISCUSSION

A. The Civil Service Reform Act

The Civil Service Reform Act of 1978 ("CSRA") provides that federal employees subject to certain "adverse actions" by their employer may appeal that adverse decision to the Merit Systems Protection Board ("MSPB"). 5 U.S.C. § 7513(d). Judicial review of the MSPB is provided by 5 U.S.C. § 7703. These "adverse actions," however, include removals, suspensions, reductions in pay and furloughs, but not reassignments within ...


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