dissenting:
I must respectfully dissent, because I do not think that Johnson has demonstrated probable irreparable injury in the absence of injunctive relief. The injury to Johnson, found not to be an “adverse action” by the Federal Employee Appeals Authority, is his transfer from a position in North Carolina to one in Mississippi of equal rank and pay. I do not think that this transfer, standing alone, constitutes irreparable harm, however displeasing it may be to Mr. Johnson.
The majority ostensibly utilizes the analysis of Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977) in determining the propriety of injunctive relief, finding that the threatened injury to Johnson is so serious that he is entitled to relief on the mere showing that there is a substantial legal issue to be litigated. But the majority in effect presupposes success on this central legal issue — “[i]f the state directorship is not a policymaking position” —to determine that Johnson’s transfer would then be “an infringement of his first amendment rights,” and declares that this infringement is the irreparable injury. Such bootstrap logic eviscerates the two-part test of Blackwelder. Furthermore, the majority’s reliance on Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) is misplaced; there the infringement of first amendment rights was direct and immediate,1 not indirect and speculative.
Therefore, unless this court is willing to hold that a job transfer to Mississippi is an injury of constitutional magnitude, a proposition which might startle the cit’zens of that state, then we cannot avoid a harder look at the merits of the case. The evidence is undisputed that Johnson, in his capacity as state director of the FmHA, supervised 288 employees and was responsible for the implementation of the national policy of the FmHA within the State of North Carolina. To suggest that his was not a policymaking position because it was classified as “Schedule A” by the Civil Service Commission- — a classification shared by special advisors in the office of the Secretary of Defense, the executive secretary to the U.S.-U.S.S.R. SALT Committee, and staff personnel on the National Security Council — defies common sense and extends Elrod v. Burns far beyond the scope of that opinion.
I find the district court’s analysis of this issue cogent and persuasive, and I would affirm on the basis of the district court’s opinion.
. The plaintiffs in Elrod were forced to switch their political allegiance to or contribute money to the political party in power; the threatened consequence for non-compliance was dismissal from their jobs.