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February 3, 1983

WILLIAM F. SMITH, et al., Defendants

Kevin Thomas Duffy, D.J.

The opinion of the court was delivered by: DUFFY



 On October 1, 1982, Stuart Stromfeld, an agent with the Drug Enforcement Administration ("DEA") moved by order to show cause for a preliminary injunction prohibiting his transfer from the DEA Atlantic City, New Jersey Office to the DEA Miami, Florida Office. A hearing was held on November 5, 1982. I reserved my decision with the understanding that Stromfeld would remain at his temporary assignment to the DEA Office in Philadelphia, Pennsylvania until I ruled on this request for preliminary relief. For the reasons that follow, Stromfeld's motion for a preliminary injunction must be denied.


 Stuart Stromfeld joined federal drug enforcement as an agent in 1967 at the General Service ("GS") Level 5. *fn1" He was assigned to the New York City area and completed his required schooling and training in both Washington, D.C. and New York. Stromfeld was promoted regularly during his early years with DEA and by 1973 he had been elevated to a GS-13. Also in 1973, Mr. John W. Fallon, one of the prime movers behind this lawsuit, was made head of the DEA New York Regional Office. Stromfeld remained in New York until 1974 when he was sent to California for one year of temporary duty ("TDY"). Two months after Stromfeld's return to New York City in 1975, he was reassigned to the Long Island DEA Office. This office requested that all employees live close by. To comply with this request and to shorten his commute Stromfeld moved his residence from Queens to Manhasset, Long Island. Carl Jackson succeeded John Fallon as head of the New York Region around this time, and Fallon was promoted to head of the Northeast Region.

 From 1974 to 1978, Stromfeld made repeated requests for promotions. In further pursuit of promotion, the plaintiff met in 1977 with Frank V. Monastero, the DEA Assistant Administrator of Operations, and two other DEA employees to express his discontent over the promotion denials. In May of 1978, Stromfeld was chosen to head up the DEA Eastern District Conspiracy Unit. This new position, though more prestigious, did not carry with it a grade or salary increase. In July of 1978, Stromfeld filed the first of three complaints with the Equal Employment Opportunity Commission ("EEOC") alleging that his stagnation at DEA was a result of religious discrimination. Mr. Stromfeld is Jewish.

 In 1979, Stromfeld was reassigned at his request, and promoted to GS-14 as Resident Agent-in-Charge of the DEA Atlantic City, New Jersey Office. Stromfeld told DEA that this promotion remedied his EEOC complaint. It was at the Atlantic City Office, however, that Stromfeld's problems with DEA administration peaked. Plaintiff filed his final EEOC complaint on August 5, 1980 against Michael Tobin, the Special Agent in charge of the Newark, New Jersey Office, alleging retaliation against Stromfeld for his earlier EEOC complaints. Soon after this filing, the following charges were levelled against Stromfeld: (1) transporting personal property in his DEA car; (2) transporting non-DEA personnel in his DEA car; (3) exercise of poor judgment; (4) failure to process properly seized contraband and property; and, (5) double vouchering. As a result of these charges, Stromfeld was demoted and reassigned to Miami, Florida. This decision was appealed to the New York Regional Office of the Merit Systems Protection Board ("MSPB"). Mitchell Kastner, the Presiding Official of the MSPB, ruled on February 8, 1982, that Stromfeld's demotion was in retaliation for his EEOC activities and therefore, reversed the demotion. Plaintiff's Exhibit A.

 The MSPB decision is a damning indictment of John Fallon, Michael Tobin and the internal operations of the DEA. Presiding Officer Kastner's disturbing account of the workings of the DEA portrays a drug enforcement agency more concerned with promoting and protecting the careers of the select few than with its job of drug enforcement. Kastner describes Fallon's determined and relentless efforts to undermine the disfavored agent Stromfeld without regard for the plaintiff's record in criminal cases and his reputation with liaison authorities. The allegedly egregious errors committed by the plaintiff, which were serious enough to require demotion and transfer, were selectively ignored when committed by preferred employees. For example, the poor judgment of DEA Agent Jerry Whitmore, as described by Kastner, was not reprimanded. Kastner's description of the DEA's response to unacceptable conduct by a member of the Fallon-Tobin camp, is a glaring example of the dangers that result when drug enforcement takes a second seat to personal controversies and selective prosecution:

Jerry Whitmore, a DEA agent at Kennedy Airport, is reputed to be an informant of Tobin and Fallon. Unbeknownst to the drug smugglers, DEA agents at Kennedy Airport had confiscated 600 pounds of hashish, worth about $1,000,000, and were laying in wait for the smugglers to return to pick up their stash. But during Whitmore's watch, the smugglers entered the warehouse and snatched the hashish out from under DEA. For that oversight, Tobin issued Whitmore a letter of admonishment which did not even go in his personnel file. Fallon, who learned of the theft, apparently also concurred that Whitmore's negligence was venial since in contrast to the appellant's [Stromfeld's] situation Fallon did not seek to impose a more severe punishment. But what makes the Whitmore incident truly Kafkaesque is that within 90 days of the theft -- which received considerable media attention -- Whitmore received a Sustained Superior Performance Award and an outstanding evaluation.

 Plaintiff's Exhibit A at 20.

 Out of all the charges made against the plaintiff, the MSPB found that the DEA could only substantiate by a preponderance of the evidence Stromfeld's poor judgment in failing to process a heroin sample promptly and his failure to properly segregate seized cassette tapes from his own tapes. Kastner's alarming condemnation of Fallon's management of the Northeast region in general and the Stromfeld case in particular is not yet a final decision. DEA's appeal of this decision is now pending before the full MSPB. *fn2"

 The MSPB decision did not end Stromfeld's battle with the DEA. Stromfeld was found unfit for duty from December 18, 1980, when he fell and hurt his back. This condition continued until the November 1982 hearing before me when plaintiff represented that he was fit to return to work. In August 1982, after Stromfeld informed DEA that he would soon be returning to work, the plaintiff met with Frank Monastero to discuss his assignment location. During this meeting Stromfeld cited the favorable MSPB decision and reaffirmed his desire to remain in the Atlantic City Office. Nevertheless, based on the charges against Stromfeld and his apparent inability to work effectively with office employees and liaison authorities, Monastero ruled out continued assignment to Atlantic City. Monastero then suggested that Stromfeld consider reassignment to Philadelphia. This transfer would allow Stromfeld to maintain his residence in Atlantic City and commute to work. Stromfeld responded that even though he was fit for duty, the commute from Atlantic City to Philadelphia would be onerous and detrimental to his health. This implicit rejection of the informal offer of Philadelphia as a possible relocation site led Monastero to explore other options. His decision to reassign Stromfeld to the DEA Miami Office was in direct response to DEA needs. Sixty-one TDY DEA personnel are presently assigned to Miami along with over one hundred permanent employees.

 The decision to transfer Stromfeld to Miami constitutes the basis of his request for preliminary relief. ...

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