Co versheet Corrected: April 9, 2007 NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3043

KAN PLASAI, Petitioner,

v.

DEPARTMENT OF TRANSPORTATION, Respondent.

Kan Plasai , of Dallas, Texas, pro se. Steven J. Abelson , Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for res pondent. With him on the brief were Peter D. Keisler , Assistant Attorney General; David M. Cohen , Director and Brian M. Simkin , Assistant Director. Of counsel on the brief was Ellyn M. Ponton , Attorney, Federal Aviation Administ ration, of Fort Worth, Texas. Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3043

KAN PLASAI, Petitioner,

v. DEPARTMENT OF TRANSPORTATION, Respondent.

__________________________ DECIDED: April 5, 2007

_______________ ___________

Before MICHEL, Chief Judge , ARCHER, Senior Circuit Judge and DYK, Circuit Judge

. PER CURIAM. Kan Plasai appeals a Merit Systems Prot ection Board (“Board”) decision in DA0752-06-0208-I-1 approving a se ttlement agreement and dismi ssing the appeal. For the reasons discussed below, we affirm

. I. BACKGROUND The Department of Transportation’s F ederal Aviation Administration (“FAA”) removed Ms. Plasai from her position as a Computer Specialist, FG-0334-09, at the Flight Standards District Office in Dallas, TX effective September 2, 2005 for misuse of her position by accessing confidential man agement documents without authorization or permission. Letter from Steven W. Douglas, F AA, to Kan Plasai, (Sept. 1, 2005).Ms. Plasai timely appealed her removal to the Board. Prior to the Board’s consideration of the merits of her appeal, Ms. Plasai , represented by counsel, entered into a settlement agreement with the FAA on May 10, 2006, which became effective on May 15, 2006. Under the settlement agreem ent, Ms. Plasai agreed inter alia (1) to dismiss her appeal with prejudice, (2) to waive all of he r claims against the United States, (3) to resign from the FAA effective May 15, 2006 and not seek re-employment with the Department of Transportation, and (4) to be bound by the terms of the agreement. Additionally, Ms. Plasai acknowledged in the agreement that she was represented by counsel during the settlement, that she understood the meaning of the agreement, and that the agreement was made freely and fairly without any duress or bad faith negotiations

. On May 15, 2006, the parties submitted th eir written agreement to the Board. Plasai v. Dep’t of Transp. , No. DA-0752-06-0208-I-1, (M.S.P. B. May 15, 2006) (“Initial Decision”). Finding that “the agreement appears la wful on its face, the parties freely entered into it, and they understand its terms,” the Administrative Judge (“AJ”) dismissed the appeal. Id. at 2. Ms. Plasai petitioned for full board review of the Initial Decision, challenging inter alia the voluntariness of the se ttlement agreement. The full board denied the petition on Se ptember 20, 2006, on the gr ounds that there was “no new, previously unavailable, evidence and that t he administrative ju dge made no error in law or regulation that affects the outcome,” thereby making the Initial Decision final. Plasai v. Dep’t of Transp. , No. DA-0752-06-0208-I-1, (M.S.P.B. Sept. 20, 2006) (citing

2007-3043 25 C.F.R. § 1201.115(d)). Ms. Plasai filed a timely appeal with this court. We have jurisdiction pursuant to 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9). II. DISCUSSION We must affirm the Board’s decision unle ss it is “(1) arbitrary, capricious, an abuse of discretion, or ot herwise not in accordance wit h law; (2) obtained without procedures required by law, ru le, or regulation hav ing been followed; or (3) unsupported by substantial evidence.” Chase-Baker v. Dep’t of Justice , 198 F.3d 843, 845 (Fed. Cir. 1999) (citing 5 U.S. C. § 7703(c)). On appeal, Ms. Plasai argues that the settlement agreement should be voided as involuntary. Because Ms. Plasai first questioned the voluntarine ss of the settlement agreement in a petition for review by the fu ll board, not during th e dismissal proceeding with the AJ, she has waived th is argument before us. See Bosley v. Merit Sys. Prot. Bd. , 162 F.3d 665, 668 (Fed. Cir. 1998) (“if the party . . . raises an issue for the first time in a petition for review by the full Board, th is court will not consider the issue.”); see also Sargent v. Dep’t of Health & Human Servs. , 229 F.3d 1088, 1091 (Fed. Cir. 2000) (holding that the issue of the voluntariness of a settle ment agreement is waived on appeal if not raised before the Board). 1 However, even if Ms. Plas ai had properly raised below the voluntariness of the settlement agreement, her argument is unpers uasive. A petitioner challenging the validity of a settlement agreement bears a “heavy burden” of pr oof that the agreement is improper. Asberry v. Un ited States Postal Serv ., 692 F.2d 1378, 1380 (Fed. Cir. 1982).

1 In her reply brief, Ms. Plasai alle ges that her husband raised the issue of voluntariness in a May 8, 2006 letter. Ho wever, she agreed to the settlement after the letter was sent, and there is no evidence th at the voluntariness of the settlement agreement that she signed was raised before the AJ.

2007-3043 3Ms. Plasai has not met this burden. For exam ple, Ms. Plasai alleges that she suffers from a mental condition that impaired her judgment and t hat the AJ coerced her. However, these allegations, conclusory and perfunctory at best, do not offset the fact that Ms. Plasai was represented by c ounsel during the settlement agreement and before the AJ; signed the agreement after acknowledging it was freely made; and told the AJ at the settlement enforcement hearing that s he freely entered into and understood the terms of the agreement. While we are sym pathetic to Ms. Plasai’s alleged medical condition, we conc lude that the Board did not e rr in its dismissal of Ms. Plasai’s appeal. Accordingly, we affirm.

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