Moulter v. Department of Homeland Security, U.S. Immigration & Customs Enforcement
714 F. App'x 999
| Fed. Cir. | 2017Background
- Dennis Moulter, an ICE deportation officer, faced proposed removal by DHS for neglect of duty, falsification, and conduct unbecoming after admitting some misconduct to DHS OIG.
- Moulter applied for donated sick leave in May 2015, was hospitalized, returned to restricted administrative duty in November 2015, and applied for disability retirement in October 2015.
- DHS issued a final notice of removal in March 2016, effective April 15, 2016; Moulter’s pay and benefits ceased April 16, 2016.
- Moulter’s union invoked arbitration in March 2016; he sought back pay alleging his retirement was involuntary but did not seek reinstatement.
- Before arbitration concluded, Moulter’s disability retirement was approved and made retroactive to April 16, 2016; DHS later cancelled the removal and expunged personnel-file references.
- The arbitrator dismissed the removal appeal as moot and found Moulter failed to make non-frivolous allegations that his retirement was involuntary; the denial of reconsideration was appealed to the court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the arbitration retains jurisdiction after DHS rescinded removal and granted retroactive retirement | Moulter contends his retirement was involuntary, so jurisdiction remains and a hearing is required | DHS contends the appeal is moot because removal was rescinded and retirement was approved retroactively | Appeal is moot; arbitrator correctly dismissed the removal challenge |
| Whether Moulter made non-frivolous allegations that his retirement was involuntary | Moulter argues DHS threatened removal based on unfounded charges, coercing his retirement | DHS argues record shows admissible grounds for removal (including Moulter’s admissions), so no coercion shown | Moulter failed to make non-frivolous allegations of involuntariness; no jurisdiction |
| Standard for proving involuntary resignation/retirement following threatened removal | Moulter asserts coercion standard met because agency threatened unsupportable charges | DHS points to controlling precedent requiring specific showings of misinformation, deception, or coercion | Court applies demanding standard and finds Moulter did not meet it |
| Burden to obtain an arbitration hearing on involuntariness | Moulter urges a hearing to develop facts | DHS insists plaintiff must first plead non-frivolous allegations to secure a hearing | Court affirms that non-frivolous allegations are required; none here, so hearing not required |
Key Cases Cited
- Appleberry v. Dep’t of Homeland Sec., 793 F.3d 1291 (Fed. Cir. 2015) (standard of review for arbitrator decisions under § 7121)
- Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322 (Fed. Cir. 2006) (burden on employee to establish arbitrator jurisdiction)
- Staats v. U.S. Postal Serv., 99 F.3d 1120 (Fed. Cir. 1996) (presumption that resignation/retirement is voluntary; requirements to rebut)
- Schultz v. U.S. Navy, 810 F.2d 1133 (Fed. Cir. 1987) (agency threat of removal based on knowingly unsupportable charges can constitute coercion)