injury. See Sampson v. Murray, supra.
In view of the above, the Court must deny plaintiff's request for a preliminary injunction on the second issue. Indeed, on that issue, the Court concludes that the appropriate remedy is for the CSA employees to exhaust their administrative remedies. Since plaintiffs have failed to do so up to this time, this aspect of the case must be dismissed.
An appropriate order shall issue.
It is hereby
ORDERED that the attached Memorandum and Order, both dated October 16, 1981, are substituted for the Memorandum and Order filed on that date. The attached Memorandum and Order make no substantive changes to the original ruling of the Court.
Pursuant to the Memorandum filed in this case on October 16, 1981, the Court concludes as follows:
First Issue. Congress has not exempted the transfer of anti-poverty programs from the Community Services Administration to the Department of Health and Human Services, see Omnibus Budget Reconciliation Act of 1981, from the coverage of the Veterans Preference Act of 1944, as amended, 5 U.S.C. § 3503. This being the case the defendant must select any employees pursuant to the preferences accorded under the Veterans Preference Act of 1944. The plaintiff is therefore entitled to a permanent injunction on the first issue.
Second Issue. The question of whether there has been an actual transfer of functions from the Community Services Administration to the Department of Health and Human Services is a question of fact. Plaintiff, and the employees it represents, have an adequate remedy at law, that is, once the agency has made its determination, those former employees of the Community Services Administration who are dissatisfied may appeal to the Merit Systems Protection Board pursuant to 5 U.S.C. § 7701. This being the case, the plaintiff and the employees it represents, will not suffer irreparable harm if injunctive relief is denied, and moreover they have failed to exhaust their administrative remedies. The second issue before the Court must therefore be dismissed.
In view of the above, it is hereby
ORDERED as to the First Issue, that the defendant, his officers, agents, servants, employees and those persons in active concert and participation with him are permanently enjoined from selecting employees to administer the former Community Services Administration programs without giving preferences as required by the Veterans Preference Act of 1944, and it is further
ORDERED, as to the Second Issue, that the plaintiff and the employees it represents, not having exhausted their administrative remedies, this aspect of the case is dismissed.