Note: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3354

VINCENT DEVERA, JR., Petitioner,

v.

SMITHSONIAN INSTITUTION, Respondent.

Vincent DeVera, Jr. , of Oxon Hill, Maryland, pro se. Roger A. Hipp , Trial Attorney, Commercial Litigat ion Branch, Civil Division, United States Department of Ju stice, of Washington, DC, for re spondent. With him on the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director, and William F. Ryan , Assistant Director.
Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3354

VINCENT DEVERA, JR., Petitioner,

v.

SMITHSONIAN INSTITUTION, Respondent.

__________________________ DECIDED: February 12, 2007

__________________________ Before LOURIE, PROST, and MOORE, Circuit Judges

. PER CURIAM. Vincent DeVera, Jr., petitions this court for review of a decision by the Merit Systems Protection Board (“M SPB” or “Board”) dismissing his appeal pursuant to a settlement agreement between Mr. DeVera and the Smithsonian Institution (“Smithsonian”). Because the MSPB co rrectly dismissed the appeal, we affirm

. I. BACKGROUND Mr. DeVera is employed by the Smiths onian as a guard supervisor. In March 2003, he was informed of a proposal to start and end guard shifts fifteen minutes earlier than previously scheduled. In an email to a supervisor, Mr. DeVera complained that theproposal violated a number of regulations and/or laws and questioned the supervisor’s authority to make such a modification to the schedule. In doing so, Mr. DeVera used language the Smithsonian deemed argumentative and condescending. In response, the Smithsonian suspended Mr. DeVera for five days for violating the Smithsonian’s policy regarding employees’ responsibilities and conduct. After ex hausting his remedies with the Sm ithsonian’s Office of Special Counsel, Mr. DeVera filed an individual-right-of- action appeal with the MSPB alleging his suspension was retaliation for reporting t he allegedly illegal schedule change. While awaiting an adjudication on the merits, Mr. De Vera and the Smithsonian entered into a settlement agreement, which, by its own terms, constituted a full and final settlement of all matters that were, or could be, rela ted to Mr. DeVera’s employment with the Smithsonian at the time of the settlemen t, save for a single Equal Employment Opportunity claim Mr. DeVera had previously filed. As part of the agreement, the Smithsonian agreed to pay attorney fees in the amount of $9,000. 00 directly to Mr. DeVera’s lawyer. Mr. DeVera agreed that he had read the agreement, understood its terms, voluntarily entered into it, and agr eed to be bound by its terms. The parties submitted the settlement agreement to t he MSPB administrativ e judge, who approved the settlement and dismissed Mr. DeVera’s appeal. Approximately one month la ter, however, Mr. DeVera petitioned the Board for review of the administrative judge’s decis ion approving the settlement and dismissing his appeal. Concluding there was no new, previ ously unavailable, evidence and that the administrative judge made no error in law or regulation that affect ed the outcome, the Board denied the petition. Mr. DeVera appeals to this court.

2006-3354 2II. DISCUSSION Our review of the Board’s decisi on is limited by statute. See 5 U.S.C. § 7703(c). We must affirm the Board’s decision unless it wa s: “(1) arbitrary, capricious, an abuse of discretion, or otherwis e not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” Id. The petitioner bears the burden of establishing error in the Board’s decision. See, e.g. , Cheeseman v. Office of Pers. Mgmt. , 791 F.2d 138, 140 (Fed. Cir. 1986). On appeal, Mr. DeVera challenges t he enforceability of the settlement agreement. However, there is no record t hat Mr. DeVera challenged the enforceability of the settlement agreement bef ore the administrativ e judge. Accordingly, we conclude that he waived his right to challenge its enfor ceability before the Board and this court. Bosley v. Merit Sys. Prot. Bd. , 162 F.3d 665, 668 (Fed. Cir. 1998)

. Even if Mr. DeVera had preserved his challenge for appeal, this c ourt has previously stated that “[t]hose who employ the judicial appellate process to attack a settlement . . . bear a properly heavy burden of proof that t he agreement was improperly obtained.” Asberry v. U.S. Postal Serv. , 692 F.2d 1378, 1380 (Fed. Cir . 1982). “A bare allegation of coercion is not sufficient to set aside the parties’ settlement agreement.” Tiburzi v. Dep’t of Justice , 269 F.3d 1346, 1355 (Fed. Cir. 2001). Instead, the party seeking to set aside the settlement must “make a showing of wrongf ul conduct necessary to shift the burden of proof on the allegation of . . . coercion.” Id. Before the Board, Mr. DeVera essent ially argued that he was induced to settle based upon bad advice from his attorney and an alleged failure by the agency to explain

2006-3354 3the scope of the release contained in the se ttlement agreement. However, Mr. DeVera agreed that he had read the settlement agreem ent and understood its terms. Moreover, even if true, Mr. DeVera’s allegations are insufficient to show that the settlement agreement was involuntary. Id. Accordingly, Mr. DeVera is bound by the settlement agreement and not entitled to any relief. On appeal, Mr. DeVera also argues that t he $9,000 in attorney fees should have been paid to him, rather than his attorney, since he had been paying his attorney directly during the course of his dispute wit h the Smithsonian. However, the settlement agreement was explicit t hat the attorney fees be paid directly to Mr. DeVera’s attorney. Any fee dispute Mr. DeVera may have with his attorney as a result of the alleged double payment of attorney fees is between Mr. DeVera and his a ttorney and is not properly the subject of this appeal. III. CONCLUSION Because the Board correctly dismiss ed Mr. DeVera’s appeal pursuant to his settlement agreement with the Smithsonian, the Board’s decision is affirmed. No costs.

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