NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3247
JOHN M. DEMAGGIO,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
UNITED STATES POSTAL SERVICE,
Intervenor.
__________________________
DECIDED: December 7, 2006
__________________________
Before LINN, Circuit Judge, FRIEDMAN and PLAGER, Senior Circuit Judges.
PER CURIAM.
John M. DeMaggio (“DeMaggio”) seeks review of an initial decision of the Merit
Systems Protection Board (“Board”), which became final when no petition for review
was filed, dismissing his appeal for lack of jurisdiction. DeMaggio v. U.S. Postal Serv.,
No. DC-0752-05-0646-I-1 (M.S.P.B. Mar. 23, 2006) (“Initial Decision”). Because
substantial evidence supports the Board’s conclusion that DeMaggio’s retirement was
voluntary, and thus that the Board lacked jurisdiction, we affirm.
BACKGROUND1
DeMaggio was a Supervisory Criminal Investigator for the United States Postal
Service in Arlington, Virginia (“the agency”). In December 2002, as part of a
reorganization plan within the agency, DeMaggio was selected for a position as Director
of Investigations of the Field Office in Dallas, Texas. DeMaggio accepted, but before he
reported for duty in Dallas, he was recalled to active duty in the Navy. Upon his return
to the Postal Service in July 2004, his supervisor informed him that his duty station was
in Dallas, but that if he retired by October 1, 2004, his supervisor would cancel the
reassignment. Without signing a written agreement to that effect, DeMaggio retired,
effective October 1, 2004.
On January 13, 2005, DeMaggio filed an Equal Employment Opportunity (“EEO”)
complaint. In it, he alleged that by forcing him to choose to report to Dallas or retire, the
agency discriminated against him on the basis of age. He also alleged retaliation for
refusing the agency’s earlier reassignment and downgrade proposals, for reporting
alleged “fraud, waste, and abuse” to the office of Senator Charles Grassley, and for
prior EEO activity. This complaint was dismissed for untimeliness and, alternatively, for
failure of proof.
DeMaggio then appealed to the Board. He alleged that the agency forced him to
retire in retaliation for his whistleblowing and EEO activity and that his forced retirement
violated the Uniformed Services Employment and Reemployment Rights Act. The
Board excused the untimeliness of this appeal for good cause shown, but it dismissed
1
All facts are as described in the initial decision of the Board. Initial
Decision, slip op. at 1–5. Although DeMaggio challenges a number of the factual
findings, the facts as stated here—though not their import—appear to be uncontested.
2006-3247 2
the appeal for lack of jurisdiction because DeMaggio had failed to demonstrate by a
preponderance of the evidence that his retirement was involuntary.
DeMaggio appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Although “we review the Board’s legal conclusion regarding the scope of its own
jurisdiction for correctness and without deference to the Board’s determination,” we are
bound by the administrative judge’s factual findings “unless those findings are not
supported by substantial evidence.” Bolton v. MSPB, 154 F.3d 1313, 1316 (Fed. Cir.
1998).
In order for the Board to possess jurisdiction over DeMaggio’s appeal, DeMaggio
must show by a preponderance of the evidence that his retirement was “involuntary.”
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1328, 1344 (Fed. Cir. 2006) (en
banc). As the Board correctly recognized, to establish involuntariness, DeMaggio must
show that “(1) the agency effectively imposed the terms of [his] . . . retirement; (2) [he]
had no realistic alternative but to resign or retire; and (3) [his] . . . retirement was the
result of improper acts by the agency.” Id. at 1329 (quoting Shoaf v. Dep’t of Agric., 260
F.3d 1336, 1341 (Fed. Cir. 2001)). “The Board has also found retirements or
resignations to be involuntary based on coercion when the agency has taken steps
against an employee, not for any legitimate agency purpose but simply to force the
employee to quit.” Staats v. U.S. Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996).
DeMaggio’s retirement was not involuntary under the standard we enunciated in
Shoaf, because he did have a “realistic alternative”: he could have accepted the
reassignment and moved to Dallas. Agencies have broad discretion to reassign their
2006-3247 3
employees, even where the reassignment requires the employee to move. See Frey v.
Dep’t of Labor, 359 F.3d 1355, 1360 (Fed. Cir. 2004). However, because DeMaggio
alleges that the reassignment was intended to coerce his retirement, the agency must
show that the reassignment “was a bona fide determination based on legitimate
management considerations in the interest of the service.” Id.
The Board concluded that the agency had met its burden, see Initial Decision,
slip op. at 14–19, and we see no error in its conclusion. The Board found, on the basis
of several witnesses’ testimony, that DeMaggio’s reassignment was part of a broader
reorganization that furthered various legitimate managerial goals, including reducing the
number of supervisors who were located far from the employees they supervised. Id.,
slip op. at 14. The Board further found, on the basis of the dates of both DeMaggio’s
and the agency’s evidence, that the reorganization predated any of DeMaggio’s EEO or
whistleblowing activity, and thus could not have constituted retaliation for it. Id., slip op.
at 17.
DeMaggio responds that he has put forward substantial evidence that the agency
had fabricated its evidence. E.g., Reply Br. for Petitioner at 8. That is not the inquiry.
The Board, as the finder of fact, is free to credit or discredit testimony on either side, so
long as its ultimate conclusion is supported by substantial evidence; we cannot and will
not disturb its findings just because contrary findings might also be supportable.
The decision of the Board must be affirmed.
2006-3247 4