Error: Bad annotation destination
                        Note: This disposition is nonprecedential.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                      NOTE: This disposition is nonprecedential.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
