Watson v. US DEPT. OF HOUSING AND URBAN DEV.

• Decision Date: 28 December 1983
• Docket Number: No. 83 C 5634.,83 C 5634.
• Citation: 576 F. Supp. 580
• Parties: Louciene WATSON, Plaintiff, v. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

576 F. Supp. 580

Louciene WATSON, Plaintiff, v. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants.

No. 83 C 5634.

United States District Court, N.D. Illinois, E.D.

December 28, 1983.

COPYRIGHT MATERIAL OMITTED

David R. Smith, Lisle, Ill., David G. Wilkins, Strauss, Sulzer, Shopiro & Wilkins, Chicago, Ill., for plaintiff.

Dan K. Webb, U.S. Atty., Mary Anne Mason, Asst. U.S. Atty., Chicago, Ill., for defendants.

MEMORANDUM AND ORDER

BUA, District Judge.

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:

... No 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);¹ 5 U.S.C. § 2302(b)(8);² 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. § 3617,³ 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 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. § 2302.⁴ 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 Cir.1981).

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 fifth amendment.⁵

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,...