Indiviglio v. United States

• Decision Date: 09 May 1962
• Docket Number: No. 428-60.,428-60.
• Citation: 299 F.2d 266,156 Ct. Cl. 241
• Parties: Salvatore J. INDIVIGLIO v. The UNITED STATES.
• Court: U.S. Claims Court

156 Ct. Cl. 241, 299 F.2d 266 (1962)

Salvatore J. INDIVIGLIO v. The UNITED STATES.

No. 428-60.

United States Court of Claims.

February 7, 1962.

Rehearing Denied May 9, 1962.

Thomas A. Ziebarth, Washington, D. C., for plaintiff. Samuel Resnicoff, New York City and Shipley, Akerman & Pickett, Washington, D. C., on the brief.

Edwin J. Reis, Washington, D. C., with whom was William H. Orrick, Jr., Asst. Atty. Gen., for defendant

LARAMORE, Judge.

This is an action by plaintiff to recover damages from defendant for an alleged wrongful separation from his employment in the Federal Housing Administration. The Federal Housing Administration stated it was separating plaintiff to promote the efficiency of the service.

The case arises on cross-motions for summary judgment and presents these questions: Has plaintiff failed to exhaust his administrative remedies; may plaintiff, a nonveteran, seek review of a determination of the Federal Housing Administration to separate him for the efficiency of the service where there were no procedural irregularities; were the rules and regulations of the Federal Housing Administration valid?

Plaintiff, in his petition, alleges that the agency violated its own rules and regulations in dismissing him. The petition does not set forth what rules or regulations were violated and it is difficult, if not impossible, to determine from the petition whether the alleged violation was a procedural one or something else. Of course, if plaintiff's allegation is aimed at a procedural error, it is incumbent upon him to appeal the dismissal to the Civil Service Commission. Plaintiff did not process an appeal to the Civil Service Commission based on a violation of procedures, and his failure in this respect would necessarily bar this action. Adler v. United States, 146 F. Supp. 956, 134 Ct.Cl. 200, cert. denied Baker v. United States, 352 U.S. 894, 77 S.Ct. 131, 1 L.Ed.2d 87.

However, plaintiff in his petition and brief, goes a step further. He charges that the rules and regulations of the agency were unreasonable and imposed an undue and restrictive burden on him.

We can see no merit in this contention. The policy and regulations of the Federal Housing Administration contained in an FHA Handbook for Employees provided as follows:

"OUTSIDE ACTIVITIES — The FHA policy on outside activities specifically prohibits any employee from engaging in outside employment or outside activities, as described here, without first obtaining approval from the Director of Personnel.

"Under the standards of the FHA policy, outside activities may be divided into two broad categories, outside employment and outside interest.

"Outside employment is any compensatory assignment other than FHA employment (excluding only an assignment with a reserve component of the military forces).

"Outside interest is any direct or indirect interest or activity that can reasonably be construed as being in conflict with any interests of the FHA.

* * * * * *

"Each FHA employee is required to complete an outside activities report form (FHA Form 843) (1) at the time of entrance on duty, (2) when the nature or scope of the approved activity is being permanently discontinued or changed, (3) when the employee wishes to enter into any outside employment or activity that has not been specifically approved, and (4) when he is specifically instructed to do so, even though no change in his approved outside activity is contemplated.

"An employee\'s decision to include or exclude his specific interest or activity in this report should not hinge on whether it is maintained or carried on for profit, or whether it is maintained or carried on for himself or on behalf of another. The decision should be made only on the basis of whether or not that interest or activity would appear to conflict, now or in the future, with the proper and impartial exercise of responsibility.

* * * * *

"Supplementing the policy on outside activities in general, more detailed policies and standards have been established for the following particular types of outside activity.

"PERSONAL REAL ESTATE TRANSACTIONS — Because FHA operations are directly concerned with real estate, FHA employees in their personal real estate transactions must avoid any possible criticism in connection with such transactions.

"When FHA insurance is not involved, a personal real estate transaction of an employee with respect to his own home is not restricted in any way and need not be reported to the FHA. If the builder, seller, broker, or mortgagee has business before the FHA, the employee must submit a statement that no special benefit will accrue to him and that in his opinion the completed transaction will not conflict with FHA policies.

"Whether or not FHA insurance is involved a personal real estate transaction involving property which is not to be used as a home for the employee or his family must be reported on FHA Form 843, Statement of Outside Activities."

Under the circumstances, rather than being unreasonable and restrictive, because of the nature of the Federal Housing Administration's activities, we think the policy and regulations were indeed necessary to a complete and honest function of the...