*2 Before BUTZNER and Judges, HOFFMAN, WALTER E. Sen- ior sitting designation. District BUTZNER, Circuit Judge: appeals James T. Johnson from the dis- trict injunc- tion. We reverse.
Johnson, Republican, was the State Di- rector for North Carolina of the federal Farmers Home Administration. Demo- cratic administration which came into office in 1977 removed position Johnson from this him specially-created transferred post of Program Assistant. As- salary sistants have the same and rank in Directors, General Schedule as State but Johnson claims that have lesser responsibilities and prestige. While pursu- remedies, administrative Johnson brought alleging suit Lhat his removal from partisan State Director was for political purposes, policy- he was not a official, therefore and fifth amendment rights had been vio- lated. See Elrod v. U.S. sought preliminary injunction reinstating him as Director. The district court 96 S.Ct. finding that request, denied 2673. The test there- fore Johnson. favors not entitled Johnson was therefore that protection.* to Elrod presented Johnson also *3 “nonpolicymaking, that he is a nonconfiden entry for of interlocu The standard government employee.” tial See Elrod v. by is injunctive relief a district court tory 367-68, 375, 427 96 Black- test. See the S.Ct. 2673. submitted numerous admin Seilig Manufactur Furniture Co. welder regulations istrative and affidavits of for (4th 1977). Co., Cir. 550 F.2d support mer Agriculture officials of his probability properly consider The court a argument that State Director’s discretion always the merits and should of success on is limited strictly loans and that How public the interest into account. take policy all for the determinations ever, “are those important the factors most by supe Home Administration are made plaintiff to probable irreparable of riors. The of Director is State of harm the likely a and without decree by classified “Schedule A” the Civil Service is a decree. If that balance defendant with positions Commission. “Schedule A” are enough plaintiff, it is that favor of struck defined as ones “other than those of a confi presented; questions are grave or serious policy-determining dential or character.” 5 need not show a likelihood of plaintiff C.F.R. 6.2 Johnson also submitted § F.2d at 196. success.” 550 by letter written the current of argues stating since the government Agriculture, State Directors the finding of Farmers Home Administration should preliminary made a district court kept be in Schedule A because Program the State Director fact “responsible managing type for a business comparable, John- positions Assistant evidence, operation.” coupled This with prevail irreparable harm or cannot show son work is Johnson’s claims that his satisfacto on the merits. ry and that he was solely dismissed because directorship is not a If the state beliefs, genuine his political raises issues and Johnson’s trans of material fact. The second re principal reasons, the fact that was political fer for quirement of Blackwelder is therefore satis shortly distant relocated pre fied. The same suffices to evidence in the placed Assistant being after judgment. In Fi summary clude American establish an in suffice to position would delity Casualty London Co. v. and Edin rights. his first amendment fringement of burgh Insurance consti Violations of first 1965), said: we Elrod v. irreparable injury. per tute se grant In for summary order to a motion supra, 427 U.S. at must judgment be shown “that there is Moreover, injunction, the without no genuine as to material fact.” to name a suc would be free government 56(c). merely Fed.R.Civ.P. Not must the as Director for to Johnson cessor controversy be historic facts free of but Carolina, would have no and Johnson North controversy also there must no as to pre if he should being reinstated means the inferences be drawn from them. is harm to the defendants vail at trial. The It although is often case that suggestion is There no insubstantial. dispute, parties are not in basic facts has been unsat performance disagree Johnson’s as to the inferences nevertheless prejudice no isfactory. may properly drawn. There Under to the dominant the case is government. Harm such circumstances not one more, summary on does not con be decided a motion party, without political judgment. government. See Elrod harm to the stitute [*] In pending appeal, we an order granting directed temporary Johnson to ex- injunction haust his administrative remedies. He has now complied with this requirement. supervised employees reverse Accordingly, responsi- we and was injunction implementation ble for the of the national grant policy for the and remand the case such FmHA within the State of so, doing express relief In we North suggest and for trial. Carolina. To that his was opinion no outcome of the not a policymaking position as to the case. because it was by classified as A” “Schedule the Civil Ser- dissenting: vice Commission-—a classification shared by special advisors in the office of the Secre- dissent, respectfully because must I do Defense, tary of the executive secretary to not think that Johnson demonstrated Committee, the U.S.-U.S.S.R. SALT probable irreparable injury in the absence personnel staff National Security The injury relief. Council —defies common sense and extends found not to be an “adverse action” *4 beyond Elrod v. Burns scope far of that Authority, Federal Employee Appeals is his opinion. transfer from a North Carolina equal one in Mississippi pay. rank and I find the court’s analysis of this transfer, I do not this standing think that cogent issue persuasive, and would alone, irreparable harm, constitutes how- affirm on the basis the district court’s displeasing ever be to Mr. Johnson. opinion. majority ostensibly The utilizes the anal-
ysis of Blackwelder Furniture Co. v. Seilig
Mfg. 1977)
determining propriety re-
lief, finding that threatened injury
Johnson is so that he is serious entitled to showing relief on the mere there ais HAYWOOD, David in behalf of himself legal litigated. substantial But similarly situated, and others majority presupposes in effect success Appellants, legal on this central the state “[i]f issue — v. policymaking position” is not a BALL, Highway J. C. N.C. State Patrol-
—to determine Johnson’s transfer man, in his Individual and official ca- infringement would then “an pacity, Grohman, Sheriff, H. G. New rights,” and declares that County, Hanover in his Individual and infringement irreparable injury. is the capacity, Wark, official I.R. Chief Jail- bootstrap logic Such eviscerates the two- er, County, New Hanover in his Individ- part Furthermore, test of Blackwelder. capacity, ual Foster, and official Claude majority’s reliance on Elrod Deputy Sheriff, County, New Hanover 2673, 373, 96 capacity, his Individual official Ap- (1976) misplaced; the infringement there pellees. of first amendment was direct and No. 78-1121. immediate,1 speculative. not indirect and Therefore, willing unless this court is of Appeals, Court hold that a to Mississippi transfer is an Fourth Circuit. magnitude, propo- of constitutional 1978. might sition which startle cit’zens of Decided Nov. state, then we cannot avoid a harder look the merits of case. The evi- undisputed
dence is in his FmHA,
capacity as state director plaintiffs consequence non-compliance in Elrod forced to switch was dismissal political allegiance money jobs. their to or from contribute their political party power; the threatened