NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

ANA MARIA RODRIGUEZ, 

Petitioner, 

v. 

DEPARTMENT OF STATE, 

Respondent. 

__________________________ 

2011-3115 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in Case No. DC0752100305-I-1. 

___________________________ 

Decided: December 7, 2011 

___________________________ 

ANA MARIA RODRIGUEZ, of Springfield, Virginia, pro 

se. 

MICHAEL S. MACKO, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for respondent. With him 

on the brief were TONY WEST, Assistant Attorney General, 

Jeanne E. Davidson, Director, and HAROLD D. LESTER, JR.,

Assistant Director. 
RODRIGUEZ v. STATE 2

__________________________ 

Before NEWMAN, BRYSON, and REYNA, Circuit Judges. 

PER CURIAM. 

DECISION

Petitioner Ana Maria Rodriguez seeks review of a decision of the Merit Systems Protection Board dismissing 

her case for lack of jurisdiction. We affirm. 

BACKGROUND

Ms. Rodriguez was a secretary with the Department 

of State’s Bureau of European and Eurasian Affairs. In 

July 2008, the Department imposed restrictions on Ms. 

Rodriguez’s use of leave, following a period of what the 

Department considered excessive absenteeism. Nine 

months later, the Department proposed to remove Ms. 

Rodriguez from her position based on various charges, 

including frequently being absent without leave, repeatedly being tardy, making unauthorized phone calls, and 

leaving hostile voicemail messages. 

On July 16, 2009, the Department and Ms. Rodriguez 

entered into a Last-Chance Agreement (“LCA”), under 

which Ms. Rodriguez’s removal would be held in abeyance 

if she abided by the agreement for one year. The LCA 

imposed restrictions on the amount of and procedure for 

requesting leave. It also included a provision waiving Ms. 

Rodriguez’s right to appeal to the Board from any removal 

action occurring within the one-year period. That provision stated: “Ms. Rodriguez voluntarily agrees to waive 

any and all rights, including grievance rights and rights 

of appeal to [the] Merit Systems Protection Board, 

whether or not now known, to contest any adverse action 
3 RODRIGUEZ v. STATE

including her removal by the Department during the oneyear period of the Agreement.” The LCA further recited 

that Ms. Rodriguez had had the opportunity to seek 

counsel, understood the terms of the agreement, and had 

entered into it voluntarily. Ms. Rodriguez signed the 

LCA, as did her union representative. Several months 

later, however, the Department concluded that Ms. Rodriguez had violated the LCA and took action to remove 

her. 

Ms. Rodriguez appealed her removal to the Board, 

and the Department moved to dismiss the appeal for lack 

of jurisdiction. The administrative judge who was assigned to the case ordered Ms. Rodriguez to submit evidence and argument as to the effect of the provision in the 

LCA waiving her right to appeal her removal to the 

Board. Ms. Rodriguez responded by arguing that her 

agreement to the LCA was involuntary, that the LCA was 

imposed on her in bad faith, and that she agreed to it 

under duress. The administrative judge, however, held 

that Ms. Rodriguez had failed to make a non-frivolous 

allegation that the LCA was not enforceable and ruled 

that she had breached the LCA due to excessive absenteeism without leave. 

DISCUSSION

Whether the Board has jurisdiction over an appeal is 

a question of law that this court reviews de novo with 

underlying findings of fact reviewed for substantial evidence. Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 

1334 (Fed. Cir. 2008); Hayes v. U.S. Postal Serv., 390 F.3d 

1373, 1376 (Fed. Cir. 2004). Ms. Rodriguez has the burden of establishing jurisdiction before the Board by a 

preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2); 

Clark v. U.S. Postal Serv., 989 F.2d 1164, 1167 (Fed. Cir. 
RODRIGUEZ v. STATE 4

1993). It is settled that an employee can waive the right 

to appeal a last-chance agreement, Gibson v. Dep't of 

Veterans Affairs, 160 F.3d 722, 725 (Fed. Cir. 1998); 

McCall v. U.S. Postal Serv., 839 F.2d 664, 668 (Fed. Cir. 

1988), and that the Board lacks jurisdiction to review the 

merits of removal actions in which, as here, an individual 

has waived appeal rights in a last-chance agreement, 

McCall, 839 F.2d at 668-69. 

In order to establish that her waiver of the right to 

appeal the merits of her removal action was unenforceable, Ms. Rodriguez was required to show that (1) she 

complied with the LCA; (2) the agency materially 

breached the LCA; (3) she entered into the LCA involuntarily or under duress; or (4) the LCA was the product of 

fraud or mutual mistake. Gibson, 160 F.3d at 725; Link 

v. Dep't of the Treasury, 51 F.3d 1577, 1581 (Fed. Cir. 

1995). 

Ms. Rodriguez has failed to establish any of those 

conditions. The record makes clear that Ms. Rodriguez 

breached the LCA by accruing more than eight hours of 

absence without leave. Moreover, there is no evidence 

that the Department acted in bad faith with respect to the 

LCA. Ms. Rodriguez complains that her medical condition made it difficult for her to comply with the strict 

terms of the LCA, but the question whether the LCA was 

unduly demanding in light of her circumstances was not 

properly before the administrative judge, as the strictness 

of an LCA is not a ground for holding that the waiver of 

Board appeal rights is invalid. Ms. Rodriguez also asserts 

that the LCA was used as a cloak for her supervisors’ 

abuse of authority, but she has pointed to no specific 

evidence that the Department failed to comply with the 

terms of the LCA or acted in bad faith in enforcing its 

provisions. 
5 RODRIGUEZ v. STATE

Ms. Rodriguez has also failed to point to any evidence 

to support her contentions that she entered into the LCA 

involuntarily and under duress. In the LCA, Ms. Rodriguez expressly stated that she was entering into the 

agreement voluntarily and with full knowledge of its 

terms. In addition, she had the opportunity to and did 

consult with her union representative, who also signed 

the LCA. She argues that she felt she had no real choice 

but to enter into the LCA at the time she agreed to its 

terms. However, the fact that she faced an unpleasant 

choice at the time she entered into the LCA—the prospect 

of immediate removal or a year working under the strict 

terms of the LCA—does not mean that her decision to 

accept the LCA was involuntary. See Staats v. U.S. 

Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996) (holding 

that an employee's choice may be voluntary even when 

“limited to two unattractive options”). 

On a procedural question, Ms. Rodriguez complains 

that her union representative was improperly denied an 

extension of time within which to respond to the administrative judge’s order directing that she show why the 

Board had jurisdiction over her appeal. Decisions as to 

procedural matters in cases pending before the Board are 

committed to the discretion of the administrative judge. 

See Spezzaferro v. Fed. Aviation Admin., 807 F.2d 169, 

173 (Fed. Cir. 1986). A Board decision on such an issue 

will not be overturned in the absence of a showing of an 

abuse of discretion resulting in substantial prejudice to 

the appellant. See Curtin v. Office of Pers. Mgmt., 846 

F.2d 1373, 1378-79 (Fed. Cir. 1988); see generally Cornelius v. Nutt, 472 U.S. 648, 657-59 (1985). Ms. Rodriguez 

has not shown that the administrative judge in this case 

abused her discretion by denying the union representative’s request for an extension of time or that the administrative judge’s order prejudiced her. Ms. Rodriguez filed 
RODRIGUEZ v. STATE 6

her own response to the administrative judge’s jurisdictional order, which the administrative judge considered, 

and that response set forth the reasons Ms. Rodriguez 

believed the LCA was invalid. She did not at the time, 

and has not now, suggested what additional evidence or 

argument her union representative would have provided 

if the administrative judge had granted the union representative’s request for an extension of time to respond to 

the jurisdictional order. We therefore reject Ms. Rodriguez’s argument regarding the denial of an extension of 

time for her union representative to respond to the jurisdictional order. 

Because we uphold the administrative judge’s decision that the waiver of appeal in the LCA was enforceable, we agree with the Board that it lacked jurisdiction 

to hear Ms. Rodriguez’s appeal from the merits of her 

removal. Ms. Rodriguez makes a number of other arguments relating to issues not relevant to the jurisdictional 

question. Because we uphold the Board’s decision that it 

did not have jurisdiction to review the merits of her 

removal action, those arguments are not before us. 

No costs. 

AFFIRMED