                                                  Coversheet 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                      NOTE: This disposition is nonprecedential.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 respondent. 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 Administration, of Fort Worth, Texas.

Appealed from: United States Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.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 Protection Board (“Board”) decision in DA-

0752-06-0208-I-1 approving a settlement agreement and dismissing the appeal. For

the reasons discussed below, we affirm.

                                I.     BACKGROUND

      The Department of Transportation’s Federal 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 management documents without authorization or

permission.   Letter from Steven W. Douglas, FAA, 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 agreement, Ms. Plasai agreed inter alia (1) to dismiss her

appeal with prejudice, (2) to waive all of her 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 their 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 lawful 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 settlement agreement. The full

board denied the petition on September 20, 2006, on the grounds that there was “no

new, previously unavailable, evidence and that the administrative judge 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                                   2
5 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 unless it is “(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.” 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 voluntariness of the settlement

agreement in a petition for review by the full board, not during the dismissal proceeding

with the AJ, she has waived this 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, this 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 settlement agreement is waived on

appeal if not raised before the Board). 1

       However, even if Ms. Plasai had properly raised below the voluntariness of the

settlement agreement, her argument is unpersuasive.            A petitioner challenging the

validity of a settlement agreement bears a “heavy burden” of proof that the agreement is

improper. Asberry v. United States Postal Serv., 692 F.2d 1378, 1380 (Fed. Cir. 1982).

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


2007-3043                                     3
Ms. Plasai has not met this burden. For example, Ms. Plasai alleges that she suffers

from a mental condition that impaired her judgment and that the AJ coerced her.

However, these allegations, conclusory and perfunctory at best, do not offset the fact

that Ms. Plasai was represented by counsel 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 she freely entered into and

understood the terms of the agreement. While we are sympathetic to Ms. Plasai’s

alleged medical condition, we conclude that the Board did not err in its dismissal of

Ms. Plasai’s appeal. Accordingly, we affirm.




2007-3043                                  4
