Note: This disposition is nonprecedential.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 Litigation Branch, Civil Division, United 

States Department of Justice, of Washington, DC, for respondent. 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 Board 
NOTE: This disposition is nonprecedential.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 (“MSPB” or “Board”) dismissing his appeal pursuant to a 

settlement agreement between Mr. DeVera and the Smithsonian Institution 

(“Smithsonian”). Because the MSPB correctly dismissed the appeal, we affirm. 

I. BACKGROUND 

Mr. DeVera is employed by the Smithsonian 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 the 
proposal 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 exhausting his remedies with the Smithsonian’s Office of Special Counsel, 

Mr. DeVera filed an individual-right-of-action appeal with the MSPB alleging his 

suspension was retaliation for reporting the allegedly illegal schedule change. While 

awaiting an adjudication on the merits, Mr. DeVera 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, related to Mr. DeVera’s employment with the 

Smithsonian at the time of the settlement, 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 agreed to be bound by its terms. The parties 

submitted the settlement agreement to the MSPB administrative judge, who approved 

the settlement and dismissed Mr. DeVera’s appeal. 

Approximately one month later, however, Mr. DeVera petitioned the Board for 

review of the administrative judge’s decision approving the settlement and dismissing 

his appeal. Concluding there was no new, previously unavailable, evidence and that the 

administrative judge made no error in law or regulation that affected the outcome, the 

Board denied the petition. Mr. DeVera appeals to this court. 

2006-3354 2
II. DISCUSSION 

Our review of the Board’s decision is limited by statute. See 5 U.S.C. § 7703(c). 

We must affirm the Board’s decision unless it was: “(1) arbitrary, capricious, an abuse of 

discretion, or otherwise 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 the enforceability of the settlement 

agreement. However, there is no record that Mr. DeVera challenged the enforceability 

of the settlement agreement before the administrative judge. Accordingly, we conclude 

that he waived his right to challenge its enforceability 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 court has previously stated that “[t]hose 

who employ the judicial appellate process to attack a settlement . . . bear a properly 

heavy burden of proof that the 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 wrongful conduct necessary to shift the burden 

of proof on the allegation of . . . coercion.” Id.

Before the Board, Mr. DeVera essentially 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 3
the scope of the release contained in the settlement agreement. However, Mr. DeVera 

agreed that he had read the settlement agreement 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 the $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 with the Smithsonian. However, the settlement 

agreement was explicit that 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 attorney and is not properly 

the subject of this appeal. 

III. CONCLUSION 

Because the Board correctly dismissed Mr. DeVera’s appeal pursuant to his 

settlement agreement with the Smithsonian, the Board’s decision is affirmed. 

 No costs. 

2006-3354 4