VanFossen v. Department of Housing and Urban Development, 84-1220

• Decision Date: 05 December 1984
• Docket Number: No. 84-1220,84-1220
• Citation: 748 F.2d 1579
• Parties: John M. VanFOSSEN, Petitioner, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1579

748 F.2d 1579

John M. VanFOSSEN, Petitioner, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent.

Appeal No. 84-1220.

United States Court of Appeals,

Federal Circuit.

Dec. 5, 1984.

Peter B. Broida, Passman & Broida, Washington, D.C., argued for petitioner.

Joan M. Blumberg, Atty., Commercial Litigation Branch, Civil Division, Dept. of Justice, Washington, D.C., argued for respondent. With her on brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, and Thomas W. Petersen, Asst. Director; Diane DiQuinzio, Dept. of Housing and Urban Development, Washington, D.C., of counsel.

Before MARKEY, Chief Judge, DAVIS, and BISSELL, Circuit Judges.

BISSELL, Circuit Judge.

Petitioner VanFossen seeks review of a final decision of the Merit Systems Protection Board (Board), Docket No. PH07528310109, sustaining his removal for violating the standards of conduct. We vacate and remand.

BACKGROUND

In July 1977, VanFossen, then a GS-12, multi-family appraiser for the Department of Housing and Urban Development (HUD or agency), requested and received from the area manager approval for outside employment (appraising single family residences for second mortgages). In December 1980, VanFossen became the Chief of the Valuation Branch, GS-13, supervising appraisals of both single and multi-family dwellings. Meanwhile, in July 1979, he formed Highlander Corporation which performed appraisals for a second mortgage firm, Freedlander, Inc., but he failed to include this information on his financial disclosure statements. All of Highlander Corporation's appraisals were for Freedlander and none involved HUD insured properties or multi-family projects. In addition, all of Freedlander's mortgages were second mortgages and none of its properties or mortgages have been HUD insured.

In October 1982, the agency removed VanFossen from his position as a supervisory appraiser based on three charges of violating the standards of conduct: engaging in outside employment without authorization; engaging in improper outside employment; and failing to disclose financial interests.

The agency requires employees to "obtain the prior approval of the appropriate Deputy Counselor before engaging in outside employment in the same professional field as that of the individual's official position." 24 C.F.R. Sec. 0.735-204(c). Since VanFossen's approval came from the area manager instead of the Deputy Counselor (the agency's regional counsel), the Board found that the approval "was issued without authority and is null and void."

Because VanFossen was thus without proper authority for his outside employment the Board found he was also in violation of 24 C.F.R. Sec. 0.735-204(a) in that the public might construe his private appraisal work as official work for the agency and might assume his appraisal activities were related to the mortgage lending business of HUD.

At the time of his removal VanFossen was 58 years old, was accredited by the International Society of Real Estate Appraisers as a Senior Residential Appraiser and a Senior Real Property Appraiser, and held a Ph.D. in business administration and an honorary doctorate in humanities. He was the author of many journal articles, a guest university lecturer, and an active participant in community charitable and fraternal organizations. As a HUD employee he never took a day of sick leave. He had never previously been the subject of disciplinary action and had received awards for outstanding performance. At the time of his discharge, VanFossen had nineteen years and eight months of federal service. Had he had twenty years, he would have been entitled to an immediate annuity, could have used a year of accumulated sick leave and would have had life and medical insurance.

OPINION

VanFossen's principal assertion is that the Board failed properly to...