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
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 the same pay grade.
5 U.S.C. § 7512, 7513, 4303(e); Broadway v. Block, 694 F.2d 979,
982 (5th Cir. 1982).
Although not classified as "adverse actions," reassignments may
constitute a "prohibited personnel practice" as defined by
5 U.S.C. § 2302.*fn4 A federal employee subject to a "prohibited
personnel practice" may file a complaint with the Office of
Special Counsel of the MSPB ("OSC"). The OSC is required to
investigate the employee's complaint and to determine whether
reasonable grounds exist to support the employee's claim. If the
OSC investigation results in a finding of prohibited personnel
practice, the OSC may seek relief before the MSPB. 5 U.S.C. § 1206(a)-(c).
Unlike the statutory provisions that provide for
judicial review of the MSPB, however, there are no statutory
provisions providing for judicial review of the OSC. Broadway,
694 F.2d at 982; Gilley v. United States, 649 F.2d 449, 453 (6th
B. Due Process Claim
In his complaint, Watson sets forth numerous facts attempting
to establish that HUD's decision to transfer him to Seattle was
arbitrary and capricious and deprived Watson of a cognizable
property interest without due process of law. Although not
alleging any procedural irregularity in the manner in which he
was transferred, Watson asserts that defendants' motives were not
for the "good of the service" but rather were to punish Watson
for his involvement in the Cummings investigation.
In order to succeed on his due process claim, Watson must show
that he has a cognizable property or liberty interest in not
being reassigned. Board of Regents v. Roth, 408 U.S. 564, 92
S.Ct. 2701, 33 L.Ed.2d 548 (1972). Absent a promise of continued
employment without reassignment, a government employee may be
transferred without due process protections. Broadway v. Block,
694 F.2d 979, 985 (5th Cir. 1982); Bullard v. Webster,
623 F.2d 1042, 1047 (5th Cir. 1980). Although Watson has pled facts which
suggest that HUD's decision to transfer him may have been unwise,
the complaint does not allege that Watson had any entitlement to
remain at the Chicago office. Since Watson has failed to
establish any cognizable property interest in not being
reassigned, his due process claim based on a deprivation of a
property interest is without merit.
Furthermore, Watson's reassignment did not infringe any
constitutionally protected liberty interest. As in Roth, the
government has not made any charge against Watson that might
seriously damage his standing in the community, such as
a charge of dishonesty or immorality. Watson's reliance upon
defendants' alleged violations of 5 U.S.C. § 2301(b)(2), (8) and
5 U.S.C. § 2302(b)(8) are insufficient to establish a cognizable
property or liberty interest under the due process clause of the
The cases relied upon by Watson in support of his due process
claim are not persuasive. In McClelland v. Andrus, 606 F.2d 1278
(D.C.Cir. 1979), the plaintiff refused to transfer to a new
position as requested by the government and was then discharged
from government service. The plaintiff in McClelland, therefore,
not only suffered an "adverse action" as defined by 5 U.S.C. § 7512,
but was also deprived of a cognizable property interest as
defined by Roth. Watson, unlike the employee in McClelland, has
not been discharged and therefore has not been deprived of a
cognizable property interest.
Motto v. General Services Administration, 335 F. Supp. 694
(E.D.La. 1971), also relied upon by Watson, held that an
involuntary transfer of a government employee could be considered
an "adverse action" and entitle the employee to a hearing. If
Motto is controlling, Watson's suit is premature because he
failed to file an appeal of his transfer with the MSPB under
5 U.S.C. § 7513(d). However, Motto, decided seven years before the
CSRA was enacted, is not a correct reading of the present law.
Cf. Broadway v. Block, 694 F.2d 979, 982 (5th Cir. 1982); Delong
v. United States, 621 F.2d 618, 624 (4th Cir. 1980).
Accordingly, Watson's due process claim is without merit. The
allegations contained in the complaint — which suggest that
defendants' decision to transfer Watson was arbitrary and
capricious — fail to establish that Watson had any cognizable
property or liberty interest in retaining his Chicago position.
The transfer of government employees, unlike removals and other
"adverse actions," is left to administrative discretion and not
reviewable by this Court. See Broadway v. Block, 694 F.2d 979,
984 (5th Cir. 1982). In explaining Congress' rationale for
leaving transfer decisions to the agency's discretion, the Fifth
In balancing conflicting needs for efficiency and
employee protection, [Congress] chose to make certain
severe personnel actions, namely "adverse actions,"
subject to judicial review, while leaving other
"personnel actions," including reassignments, to
Broadway, 694 F.2d at 984.