Kan Plasai v. Department of Transportation

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NOTE: This disposition is nonprecedential.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

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NOTE: This disposition is nonprecedential.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).

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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

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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

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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

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