NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3066
DANIEL E. SHALIK,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
UNITED STATES POSTAL SERVICE,
Intervenor.
Daniel E. Shalik, of Centennial, Colorado, pro se.
Thomas N. Auble, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With him on the brief were B.
Chad Bungard, General Counsel, and Rosa M. Koppel, Deputy General Counsel.
Courtney E. Sheehan, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for intervenor. With
her on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Mark A. Melnick, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3066
DANIEL E. SHALIK,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
UNITED STATES POSTAL SERVICE,
Intervenor.
Petition for review of the Merit Systems Protection Board in
DE0752070393-I-1.
__________________________
DECIDED: June 6, 2008
__________________________
Before MICHEL, Chief Judge, LINN, Circuit Judge, and ZAGEL, * District Judge.
PER CURIAM.
Daniel E. Shalik petitions for review of the final decision of the Merit Systems
Protection Board (“Board”), dismissing his appeal for lack of jurisdiction. Shalik v.
*
Honorable James B. Zagel, District Judge, United States District Court for
the Northern District of Illinois, sitting by designation.
United States Postal Serv., DE-0752-07-0393-I-1 (M.S.P.B. Oct. 4, 2007). Because
Shalik failed to raise non-frivolous allegations that his resignation was involuntary and
thus tantamount to removal, the Board lacked jurisdiction over his appeal. We therefore
affirm.
I.
Shalik was an employee of the United States Postal Service (“Postal Service” or
“agency”) with over twenty-three years of service. On January 12, 2007, part of his
route included the Canine Fitness Center in Denver, CO, and during that delivery,
Shalik had an altercation with a customer and a dog. Specifically, the agency alleged
that Shalik opened the door to the business, saw that a dog was loose, and returned to
his postal truck. He then blew the horn, and the owner of the business came out to
collect the mail. Shortly thereafter, Shalik went back inside the business (ostensibly to
collect outgoing mail) and grabbed a snow shovel just inside the door. After the dog
and the owner approached Shalik, he struck the dog in the head, threw the shovel, and
struck the owner in the foot with it. Thereafter, the agency alleged that Shalik returned
to his vehicle and made a rude gesture out his window in the direction of the business
as he pulled away. Following the incident, Postal Inspectors were called, and Shalik
was put on paid administrative leave.
On April 3, 2007, the Postal Service issued a notice proposing to remove Shalik,
and on April 27, 2007, it issued a letter of decision finding that Shalik would be removed
effective May 4, 2007. Shalik also filed a grievance through his union concerning the
proposed removal, and on May 10, 2007, as part of that process, a dispute resolution
team issued a decision concluding that the Postal Service had “just cause” to remove
2008-3066 2
Shalik. Nevertheless, Shalik was given the opportunity to resign; if he did not resign by
May 18, 2008, he would be removed pursuant to the Notice of Removal. On May 16,
2007, Shalik submitted his resignation, effective that day, which stated: “I voluntarily
submit my resignation to seek higher education and pursue other employment
opportunities.”
Shalik then appealed to the Board, asserting that he acted in self-defense during
the dog attack and that the penalty of removal was unduly harsh in light of his lengthy
government service. Shalik alleged that he “felt [he] had no choice [but] to resign rather
than to have the Notice of Removal enforced.” He asked to be reinstated with back pay.
The Administrative Judge (“AJ”) assigned to Shalik’s appeal issued an
Acknowledgment Order, which noted that resignations are generally presumed to be
voluntary and that Shalik’s appeal would be dismissed for lack of jurisdiction unless he
amended his petition to allege that his resignation was “the result of duress, coercion, or
misrepresentation by the agency.” The AJ also informed Shalik that he had the burden
to prove the Board’s jurisdiction and ordered Shalik to “file evidence and argument to
prove that this action is within the Board’s jurisdiction.” On the same day, the AJ issued
another order that further detailed the information that Shalik needed to submit to
establish non-frivolous allegations that his resignation was involuntary. The order
warned that if Shalik did not make a non-frivolous allegation, his appeal would be
dismissed.
Shalik did not respond to either of the AJ’s orders. On July 10, 2007, the agency
moved to dismiss Shalik’s appeal for lack of jurisdiction, and on July 17, 2007, the AJ
dismissed the appeal on that basis. The AJ held that Shalik had “alleged no
2008-3066 3
circumstances which, if proven, would support that the agency did not have an arguable
basis for his removal.” The AJ found that Shalik was not arguing that the alleged
incident did not take place, “only that it did not occur exactly in the manner the agency
maintained it did in proposing his removal.” The AJ also noted that although not raised
by Shalik, the eight-day period he had to determine whether to resign was sufficient
such that his resignation was not coerced. The AJ thus concluded that Shalik had not
made non-frivolous allegations that the Board had jurisdiction and dismissed his appeal
on that basis.
Shalik appealed the AJ’s decision to the full Board, alleging that he was
misrepresented by the Union – according to Shalik, the Union president told Shalik that
if he did not resign, he would be barred from obtaining other government employment
and that unsatisfactory work evaluations would follow him. He also continued to argue
that the punishment of removal was unduly harsh and that the incident had not occurred
as the agency alleged. The full Board denied his petition for review, thereby rendering
the AJ’s decision final.
Shalik timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
II.
Our review of Board decisions is limited by statute. “We must affirm the Board’s
decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; obtained without procedures required by law, rule, or
regulation having been followed; or unsupported by substantial evidence.” Campion v.
Merit Sys. Protection Bd., 326 F.3d 1210, 1212 (Fed. Cir. 2003) (citing 5 U.S.C.
2008-3066 4
§ 7703(c)). We review de novo whether the Board had jurisdiction to adjudicate an
appeal. Id. (citing Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999)).
Resignations are presumed voluntary; to establish the Board’s jurisdiction, the
appellant must overcome that presumption by making a non-frivolous allegation that the
resignation was the result of misinformation, deception, or coercion by the agency. See
Staats v. United States Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996). “In order to
establish involuntariness on the basis of coercion, an employee must show that the
agency effectively imposed the terms of the employee’s resignation or retirement, that
the employee had no realistic alternative but to resign or retire, and that the employee's
resignation or retirement was the result of improper acts by the agency.” Id. (citations
omitted).
On appeal, Shalik argues that he was coerced into submitting his resignation.
However, the AJ issued two orders advising Shalik that he needed to present evidence
and argument to make non-frivolous allegations that his resignation was involuntary,
and Shalik did not respond to either order. In this appeal, he alleges, as he did before
the full Board, that his resignation was coerced, but that allegation is conclusory and
therefore cannot be accepted as non-frivolous. Shalik also argues that the agency
incorrectly informed the AJ that Shalik was present “at an arbitrator’s meeting” when he
was not, and that he was not properly represented by union officials. Even if these
allegations are true, however, they do not establish that he was coerced into submitting
his resignation, and could not have instead allowed the agency to remove him and then
challenged that removal. Because Shalik failed to submit any evidence in support of his
2008-3066 5
claim of coercion, the decision of the Board to dismiss his appeal for lack of jurisdiction
is affirmed.
NO COSTS.
2008-3066 6