                       NOTE: This disposition is nonprecedential.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
