                      NOTE: This disposition is nonprecedential.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                      NOTE: This disposition is nonprecedential.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
