Vincent Devera, Jr. v. Smithsonian Institution

Note: This disposition is nonprecedential.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

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NOTE: This disposition is nonprecedential.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

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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.
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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
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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.
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