NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DENNIS MOULTER,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY, U.S.
IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondent
______________________
2017-1958
______________________
Petition for review of an arbitrator’s decision in No.
160603 by Jeanne M. Vonhof.
______________________
Decided: November 9, 2017
______________________
DENNIS MOULTER, Norwalk, CT, pro se.
ANTONIA RAMOS SOARES, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
DEBORAH A. BYNUM.
______________________
2 MOULTER v. DHS
Before PROST, Chief Judge, LOURIE and CHEN,
Circuit Judges.
PER CURIAM.
Petitioner Dennis Moulter challenges an arbitration
award dismissing his appeal of his removal by the De-
partment of Homeland Security (“DHS” or “the agency”)
as moot after the agency rescinded its removal action and
finding that his retirement was not involuntary. In re
Dep’t of Homeland Sec., U.S. Immigration & Customs
Enf’t & Am. Fed’n of Gov’t Emps., Local 527, Arb. No.
160603 (Feb. 20, 2017). Because we agree with the arbi-
trator’s determination that the removal appeal is moot
and that Mr. Moulter failed to make non-frivolous allega-
tions that his retirement was involuntary, we affirm.
BACKGROUND
Before his retirement, Mr. Moulter worked as a depor-
tation officer for United States Immigration and Customs
Enforcement, within DHS. Mr. Moulter’s position in-
volved “physically and mentally demanding and stressful”
work. J.A. 46.
Throughout 2015, Mr. Moulter faced numerous health
issues. In May of that year, Mr. Moulter applied for leave
donated to him from other employees. In that application,
Mr. Moulter certified that he had a medical emergency
involving “liver issues.” J.A. 63. Several days after
applying for leave donations, Mr. Moulter was hospital-
ized, and expected to remain in the hospital for five to
seven days. He was released to return to work effective
June 15, 2015.
While Mr. Moulter’s health issues loomed, DHS had
already begun processing the proposed removal of Mr.
Moulter on three grounds: (1) neglect of duty; (2) falsifi-
cation; and (3) conduct unbecoming a law enforcement
officer. With respect to the neglect-of-duty ground, DHS
alleged that Mr. Moulter improperly processed the depor-
MOULTER v. DHS 3
tation of two aliens. With respect to falsification, DHS
alleged that Mr. Moulter had falsified forms indicating
that he had served aliens in detention with warnings for
failure to depart, when he had not served those detainees.
Mr. Moulter admitted to this conduct during an interview
with the DHS Office of the Inspector General in June
2014. With respect to the conduct unbecoming an officer,
DHS alleged that Mr. Moulter failed to report a bribery
attempt. Mr. Moulter also acknowledged this conduct
during the same interview with the Office of the Inspector
General.
DHS completed its notice of proposed removal on May
22, 2015, but it decided not to issue the notice until after
Mr. Moulter returned from his sick leave.
On October 4, 2015, Mr. Moulter initiated the process
to apply for disability retirement. In his application,
Mr. Moulter stated he suffered from various physical and
mental conditions. He stated these conditions “greatly
hindered [his] ability to perform the physical aspects of
[his] job” and that “completing daily tasks [had] become
increasingly difficult and time consuming.” J.A. 67–70.
Mr. Moulter returned to work, performing only ad-
ministrative duties, in November 2015. DHS served the
proposed notice of removal of Mr. Moulter on November
16, 2015.
DHS continued to process Mr. Moulter’s disability re-
tirement application, which typically takes six months to
be approved.
On March 24, 2016, DHS issued a notice of removal,
sustaining all three grounds charged in the proposed
notice of removal, effective April 15, 2016. Mr. Moulter’s
wages and benefits ceased on April 16, 2016.
In March 2016, Mr. Moulter’s union invoked arbitra-
tion under his collective bargaining agreement to review
his removal. Mr. Moulter sought back pay based on the
4 MOULTER v. DHS
contention that his retirement was involuntary. He did
not seek reinstatement.
Before the arbitration ever took place, Mr. Moulter’s
application for disability retirement was approved. The
agency made his disability retirement benefits retroactive
to April 16, 2016, the day after his employment terminat-
ed.
In October 2016, before the second day of arbitration
could occur, DHS cancelled the removal action, and all
references to that action were removed from Mr. Moulter’s
personnel file.
DHS moved to dismiss. The arbitrator granted the
motion, concluding that the challenge of the removal
action was moot and that Mr. Moulter had failed to make
a non-frivolous allegation that his application for disabil-
ity retirement benefits was involuntary. The arbitrator
denied Mr. Moulter’s motion for reconsideration.
Mr. Moulter now appeals.
DISCUSSION
Federal employees who are also union members may
challenge removal either by direct appeal to the Merit
Systems Protection Board or through arbitration. 5
U.S.C. § 7121(e)(1). We “review an arbitrator’s decision
under the same standards of review that is applied to
decisions from the Merit Systems Protection Board.”
Appleberry v. Dep’t of Homeland Sec., 793 F.3d 1291, 1295
(Fed. Cir. 2015); see also 5 U.S.C. § 7121(f). Thus, we
must affirm the arbitrator unless the decision is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” Appleberry, 793 F.3d at 1295 (quoting 5 U.S.C.
§ 7703(c)).
MOULTER v. DHS 5
Mr. Moulter bore the burden of establishing that the
arbitrator had jurisdiction over his appeal. 5 C.F.R.
§ 1201.56(a)(2)(i); Garcia v. Dep’t of Homeland Sec., 437
F.3d 1322, 1328 (Fed. Cir. 2006). Mr. Moulter was enti-
tled to a hearing only if he made non-frivolous allegations
that, if proven, would demonstrate that the arbitrator had
jurisdiction. Staats v. U.S. Postal Serv., 99 F.3d 1120,
1125 (Fed. Cir. 1996).
Mr. Moulter does not dispute that his appeal of his
removal is moot. Instead, he argues the arbitrator should
have held a hearing to determine whether Mr. Moulter’s
decision to retire was voluntary.
Jurisdiction to hear an appeal by an employee who re-
signs or retires is available “only if the employee shows
that his resignation or retirement was involuntary and
thus tantamount to a forced removal.” Id. at 1124. A
federal employee’s decision to resign or retire “is pre-
sumed to be voluntary.” Id. at 1123. To rebut this pre-
sumption, Mr. Moulter must satisfy “a demanding legal
standard,” demonstrating that DHS’s action was the
product of “misinformation or deception” or “coercion.” Id.
at 1124.
Mr. Moulter makes no allegation of misinformation or
deception. Thus, the only question is whether his resig-
nation was coerced. To show coercion, Mr. Moulter must
show that DHS (1) “effectively imposed the terms of the
employee’s resignation or retirement,” (2) that he “had no
realistic alternative but to resign or retire,” and (3) that
his “resignation or retirement was the result of improper
acts by the agency.” Id. Mr. Moulter purports to satisfy
this burden by showing that DHS threatened removal
based on allegations that DHS knew could not be sub-
stantiated. See id. (citing Schultz v. U.S. Navy, 810 F.2d
1133, 1136 (Fed. Cir. 1987) (“If an employee can show
that the agency knew that the reason for the threatened
6 MOULTER v. DHS
removal could not be substantiated, the threatened action
by the agency is purely coercive.”)). We disagree.
Mr. Moulter states that DHS’s charges were “un-
founded,” but he offers no factual allegations that, if
proven, demonstrate that the agency could not sustain its
removal decision. Indeed, Mr. Moulter’s bare assertion is
at odds with the record. Mr. Moulter himself acknowl-
edged, in an interview with the Office of the Inspector
General, the conduct supporting two of the charges
against him.
Mr. Moulter cannot satisfy his burden to establish ju-
risdiction with this conclusory allegation.
Mr. Moulter’s assertions that he intended to continue
working or that he would have timed his retirement
differently do not bear on the showings required to sup-
port a theory of coercion by the agency. In any case, they
are conclusory and contradicted by the record. Thus, they
cannot rescue Mr. Moulter’s theory that his retirement
was involuntary from frivolousness.
CONCLUSION
For at least the foregoing reasons, the arbitrator did
not err in concluding that Mr. Moulter has failed to make
a non-frivolous allegation that his retirement was invol-
untary and dismissing the appeal.
AFFIRMED
COSTS
The parties shall bear their own costs.