Deliris Montanez v. Department of Homeland Security

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DELIRIS MONTANEZ,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2024-1939
______________________
Petition for review of the Merit Systems Protection
Board in Nos. DA-1221-20-0330-W-2, DA-1221-20-0421-W-
2.
______________________
Decided: February 13, 2025
______________________
D ELIRIS M ONTANEZ, El Paso, TX, pro se.
LAUREL D ON H AVENS, III, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, W ILLIAM JAMES G RIMALDI , PATRICIA M.
M C CARTHY.
______________________
Before PROST, W ALLACH , and CHEN, Circuit Judges.
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MONTANEZ v. DHS 2
PER CURIAM.
Deliris Montanez filed two individual right of action
appeals with the Merit Systems Protection Board (Board),
alleging that the Department of Homeland Security (DHS)
retaliated against her for whistleblowing. During a hear-
ing for the consolidated appeals, the parties informed the
administrative judge that they had resolved their dispute
through a settlement agreement. In an initial decision, the
administrative judge dismissed the appeals after finding
that the settlement agreement “appears lawful on its face,
the parties freely entered into it, and they understand the
terms.” Montanez v. Dep’t of Homeland Sec., Nos. DA-
1221-20-0330-W-2, DA-1221-20-0421-W-2, 2021 WL
4133814 (M.S.P.B. Sept. 9, 2021); see 5 C.F.R.
§ 1201.41(c)(2). Ms. Montanez subsequently filed a peti-
tion for review with the full Board. The Board rejected
Ms. Montanez’s arguments that the settlement agreement
was invalid, denied the petition for review, and affirmed
the administrative judge’s initial decision, which became
the final decision of the Board. Montanez v. Dep’t of Home-
land Sec., Nos. DA-1221-20-0330-W-2, DA-1221-20-0421-
W-2, 2024 WL 1599157 (M.S.P.B. Apr. 11, 2024) (Decision);
see 5 C.F.R. § 1201.113(b). Ms. Montanez now petitions
this court for review. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9). For the reasons explained below, we affirm.
D ISCUSSION
Our review of Board decisions is limited. We must af-
firm the Board’s decision unless we find that it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c).
Ms. Montanez generally argues that her settlement
agreement with DHS was unlawful, involuntary, and the
result of fraud. Pet’r’s Informal Br. 2–3. “Those who
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MONTANEZ v. DHS 3
employ the judicial appellate process to attack a settlement
through which controversy has been sent to rest bear a
properly heavy burden.” Asberry v. U.S. Postal Serv., 692
F.2d 1378, 1380 (Fed. Cir. 1982). “It is well-established
that in order to set aside a settlement, an appellant must
show that the agreement is unlawful, was involuntary, or
was the result of fraud or mutual mistake.” Sargent v.
Dep’t of Health & Hum. Servs., 229 F.3d 1088, 1091 (Fed.
Cir. 2000) (per curiam).
Ms. Montanez first argues that DHS, in bad faith,
withheld “crucial documentation” and “information” that
would have supported her whistleblower retaliation claim,
and thus the Board “did not have all the facts.” Pet’r’s In-
formal Br. 2–3. But Ms. Montanez fails to identify any ma-
terial documents or information withheld by DHS prior to
the parties’ settlement. Ms. Montanez also argues that she
was “deceived” by her attorney, who coerced her into enter-
ing into the agreement. Pet’r’s Informal Br. 2. To succeed
on such an argument, Ms. Montanez “must make a ‘show-
ing of wrongful conduct necessary to shift the burden of
proof on the allegation’ of the attorney’s . . . coercion from
[herself] to the agency.” Tiburzi v. Dep’t of Just., 269 F.3d
1346, 1355 (Fed. Cir. 2001) (quoting Asberry, 692 F.2d at
1381). Ms. Montanez’s “unsubstantiated allegations” that
she was pressured to enter the agreement due to (1) her
attorney’s personal financial needs, and (2) an unspecified
emergency involving an exchange student she was hosting,
fail to make a showing of coercion. Id. As the Board noted,
Ms. Montanez has submitted no evidence in support of her
claim regarding her attorney’s motives. Decision, 2024 WL
1599157, at *3. “A bare allegation of coercion is not suffi-
cient to set aside the parties’ settlement agreement.” Ti-
burzi, 269 F.3d at 1355.
Next, Ms. Montanez argues that she lacked mental ca-
pacity to enter into the settlement agreement. She relies
only on a letter from her psychiatric nurse practitioner that
notes Ms. Montanez has been diagnosed with PTSD,
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MONTANEZ v. DHS 4
anxiety, and other mental disorders. The Board gave no
weight to that letter because it did not “specifically address
[Ms. Montanez’s] mental capacity at the time she signed
the settlement agreement.” Decision, 2024 WL 1599157, at
*3. The Board found that Ms. Montanez failed to prove a
claim of mental incapacity, further noting that “the admin-
istrative judge stated on the record that he assisted with
facilitating the settlement terms and that the parties en-
tered into the agreement voluntarily,” and Ms. Montanez
“has provided no evidence to find otherwise.” Id. On the
record before us, we cannot say the Board’s findings are
unsupported by substantial evidence.
Finally, Ms. Montanez raises arguments about the pro-
priety of a $10,000 fee paid to her attorney by DHS as part
of the settlement agreement. See Pet’r’s Informal Br. 3;
Pet’r’s Mem. in Lieu of Oral Arg. 2–3. Ms. Montanez con-
tends that she had already paid her attorney and DHS im-
properly paid the $10,000 to him. To the extent
Ms. Montanez asserts that DHS breached the terms of the
settlement agreement by paying her attorney, such allega-
tions are “properly dealt with on a petition for enforcement,
not a petition for review.” Torain v. Smithsonian Inst., 465
F. App’x 945, 948 (Fed. Cir. 2012) (per curiam) (citing
Trotta v. U.S. Postal Serv., 73 M.S.P.R. 6, 9 (1997)). And
to the extent Ms. Montanez argues that the agreement is
unlawful because Board regulations required DHS to pro-
vide the entire settlement amount directly to her, she has
cited no such regulation or authority for that contention.
We are aware of none. Further, any dispute between
Ms. Montanez and her attorney regarding the fee is beyond
the scope of Ms. Montanez’s appeal to the Board and our
review thereof.
C ONCLUSION
We have considered Ms. Montanez’s remaining argu-
ments and find them unpersuasive. Accordingly, we affirm
the Board’s final decision.
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MONTANEZ v. DHS 5
AFFIRMED
COSTS
No costs.
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