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Copyright (c) 2008 The Federal Circuit Bar Association
The Federal Circuit Bar Journal

ARTICLE: Last Chance Agreements for Federal Employees: Hidden Costs and Unseen Problems


The Federal Circuit Bar Journal

18 Fed. Cir. B.J. 157


Drew Sarrett *



Government agencies frequently use Last Chance Agreements (LCAs) to discipline and, rehabilitate poor performers and problem employees. 1 LCAs essentially place employees on extended probation and obligate them to meet certain requirements and behavioral standards in the workplace. 2 LCAs typically remove progressive discipline and procedural safeguards that protect employees from summary dismissal. 3 Agencies utilize LCAs as part of Alternative Dispute Resolution (ADR) to lessen litigation costs and avoid lost time and productivity for supervisors and employees. 4 In return for a second chance, the government employee agrees not to appeal any disciplinary action, including dismissal, taken pursuant to the LCA. 5

To overcome a waiver of appeal rights, under Buchanan v. Dep't of Energy, 6 the employee "must prove either compliance with the last-chance agreement, that the agency breached the agreement, or that the employee did not knowingly and voluntarily enter into the agreement." 7 Although the employee waives his or her appeal rights, the employee retains the right to appeal based on whether the facts support one of the three challenges set forth in Buchanan. 8 Initially, the employee may appeal the removal before an Administrative Law Judge (ALJ). 9 If the Aq rules against the employee, the employee may petition for review of the initial decision by the Merit Systems Protection Board (MSPB). 10 Finally, if the MSPB rejects the petition for review or affirms the ALJ's decision, the employee may appeal to the United States Court of Appeals for ...
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