CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2001
Syllabus
UNITED STATES POSTAL SERVICE v. GREGORY
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL
CIRCUIT
No. 00-758. Argued October 9, 200l-Decided November 13,2001
While three disciplinary actions that petitioner Postal Service
took against respondent were pending in grievance proceedings
pursuant to the Postal Service's collective bargaining agreement
with respondent's union, the Postal Service terminated respondent's
employment after a fourth violation. The Civil Service Reform Act
of 1978 (CSRA) permits covered employees, such as respondent, to
appeal removals and other serious disciplinary actions to the Merit
Systems Protection Board (Board) or through the negotiated
grievance procedure, but not both. Respondent appealed to the
Board, where an agency must prove its charge by a preponderance of
the evidence, 5 U. S. C. § 7701(c)(I)(B), proving not only that the
misconduct occurred, but also that the penalty assessed is
reasonable in relation to it. An Administrative Law Judge (ALJ)
concluded that respondent's termination was reasonable in light of
her four violations. Although the three prior disciplinary actions
were the subject of pending grievances, the ALJ analyzed them
independently, under the approach set forth in Bolling v.
Department of Air Force, 8 M. S. P. B. 658, and found that they
were not clearly erroneous. While respondent's petition for review
of the ALJ's decision was pending before the Board, an arbitrator
overturned the first disciplinary action. Respondent did not inform
the Board, which denied her petition. The Federal Circuit vacated
in part and remanded, holding that prior disciplinary actions
subject to ongoing proceedings may not be used to support a
penalty's reasonableness.
2
Syllabus
Held:
1. The Board may review independently prior disciplinary actions
pending in grievance proceedings when reviewing termination and
other serious disciplinary actions. The Federal Circuit reviews a
Board decision's substance under the extremely narrow arbitrary and
capricious standard, which allows the Board wide latitude in
fulfilling its obligation to review agency disciplinary actions.
The role of judicial review is only to ascertain if the Board has
met the CSRA's minimum standards. There is nothing arbitrary about
the Board's decision to independently review prior violations.
Neither the Federal Circuit nor respondent has suggested that the
Board has applied its policy inconsistently or that it lacks
reasons for its approach. Nor is independent Board review contrary
to any law. The Federal Circuit's reference to Douglas v. Veterans
Admin., 5 M. S. P. B. 313, which sets out the framework for
reviewing disciplinary actions, is a way of describing the Board's
review process, not, as respondent suggests, an indication that the
Board violated § 7701(c)(1)(B). More important, any suggestion that
independent review by the Board violates that section's
preponderance of the evidence standard would be incorrect. The
Board has its own mechanism for allowing agencies to meet their
statutory burden of justifying all violations supporting a penalty.
Insofar as Bolling review is adequate, an agency may meet its
burden by prevailing either in grievance or before the Board.
Independent review also does not violate the CSRA's general
statutory scheme, which allows Board review of serious, but not
minor, disciplinary actions. Where a termination is based on a
series of disciplinary actions, some of which are minor, the
Board's authority to review the termination must also include the
authority to review each of the prior disciplinary actions to
establish the penalty's reasonableness. Any effects of such review
on pending grievance procedures result from the CSRA's parallel
review structures. If the Board's independent review procedure is
adequate, the review that an employee receives is fair. Although
that procedure's fairness is not before this Court, a presumption
of regularity attaches to Government agencies' actions, and some
deference to agency disciplinary actions is appropriate. Pp.
6-10.
2. Because the Board does not rely upon disciplinary actions
that were overturned in grievance proceedings at the time of its
review, a remand to the Federal Circuit is necessary to determine
the effect that the reversal of one of respondent's disciplinary
actions had on her termination. Pp. 10-11.
212 F.3d
1296, vacated and remanded.
3
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, SCALIA, KENNEDY, SOUTER, THOMAS, and
BREYER, JJ., joined. THOMAS, J., filed a concurring opinion, post,
p. 11. GINSBURG, J., filed an opinion concurring in the judgment,
post, p. 14.
Gregory G. Garre argued the cause for petitioner. With him on
the briefs were Solicitor General Olson, former Acting Solicitor
General Underwood, Acting Assistant Attorney General Schiffer,
Deputy Solicitor General Clement, David M. Cohen, Todd M. Hughes,
David B. Stinson, Mary Anne Gibbons, Lori
J. Dym, and
Stephan
J. Boardman.
Henk Brands argued the cause and filed a brief for respondent.
*
JUSTICE O'CONNOR delivered the opinion of the Court. The Civil
Service Reform Act of 1978 allows eligible employees to appeal
termination and other serious disciplinary actions to the Merit
Systems Protection Board. 5 U. S. C. §§ 7512-7513. The Federal
Circuit ruled that, when assessing the reasonableness of these
actions, the Board may not consider prior disciplinary actions that
are pending in collectively bargained grievance proceedings.
212 F.3d
1296, 1298 (2000). Because the Board has broad discretion in
determining how to review prior disciplinary actions and need not
adopt the Federal Circuit's rule, we now vacate and remand for
further proceedings.
I
Respondent Maria Gregory worked for petitioner United States
Postal Service as a letter technician with responsibil-
*Briefs of amici curiae urging affirmance were filed for the
American Federation of Government Employees, AFL-CIO, by Mark D.
Roth and Charles A. Hobbie; for the National Association of Letter
Carriers, AFLCIO, by Keith E. Secular; for the National Employment
Lawyers Association by Edward H. Passman and Paula A. Brantner; and
for the National Treasury Employees Union by Gregory O'Duden,
Barbara A. Atkin, and Kerry L. Adams.
4
ity for overseeing letter carriers on five mail routes, and
serving as a replacement carrier on those routes. App. to Pet. for
Cert. A-iS. On April 7, 1997, respondent left work early to take
her daughter to the doctor, ignoring her supervisor's instructions
to sort the mail for her route before leaving. She received a
letter of warning for insubordination. App. 47-48. Respondent filed
a grievance under the procedure established in the collective
bargaining agreement between her union and her employer, see
generally 1998-2001 Agreement Between National Association of
Letter Carriers, AFL-CIO and U. S. Postal Service, Art. 15. App.
43.
Later that same month respondent was cited for delaying the
mail, after mail from another route was found in her truck at the
end of the day. Id., at 45-46. The Postal Service suspended her for
seven days, and respondent filed a second grievance. Id., at 41-42.
In August 1997, respondent was again disciplined for various
violations, including failing to deliver certified mail and
attempting to receive unauthorized or unnecessary overtime. Id., at
38-40. She received a 14-day suspension, and again filed a
grievance.
While these three disciplinary actions were pending in grievance
proceedings pursuant to the collective bargaining agreement,
respondent was disciplined one final time. On September 13, 1997,
respondent filed a form requesting assistance in completing her
route or, alternatively, 3% hours of overtime. Considering this
request excessive, respondent's supervisor accompanied her on her
route and determined that she had overestimated the necessary
overtime by more than an hour. Id., at 31-33. In light of this
violation and respondent's previous violations, her supervisor
recommended that she be removed from her employment at the Postal
Service. Ibid. On November 17, 1997, the Postal Service ordered
respondent's termination effective nine days later. Id., at
24-29.
Because respondent previously served in the Army, she falls into
the category of "preference eligible" Postal Service
5
employees covered by the Civil Service Reform Act of 1978
(CSRA). 5 U. S. C. § 7511(a)(1)(B)(ii). The CSRA provides covered
employees the opportunity to appeal removals and other serious
disciplinary actions to the Merit Systems Protection Board (Board).
§§ 7512-7513. Under the CSRA, respondent could appeal her
termination to the Board or seek relief through the negotiated
grievance procedure, but could not do both. § 7121(e)(1).
Respondent chose to appeal to the Board.
When an employing agency's disciplinary action is challenged
before the Board, the agency bears the burden of proving its charge
by a preponderance of the evidence. § 7701(c)(1)(B). Under the
Board's settled procedures, this requires proving not only that the
misconduct actually occurred, but also that the penalty assessed
was reasonable in relation to it. Douglas v. Veterans Admin., 5 M.
S. P. B. 313,333-334 (198D.
Following these guidelines, a Board Administrative Law Judge
(ALJ) upheld respondent's termination, concluding that the Postal
Service had shown that respondent overestimated her overtime beyond
permissible limits on September 13, App. to Pet. for Cert. A-29,
and that her termination was reasonable in light of this violation
and her prior violations. Id., at A-36 to A-40. Although the three
prior disciplinary actions were the subject of pending grievances,
the ALJ analyzed them independently, following the approach set
forth in Bolling v. Department of Air Force, 8 M. S. P. B. 658
(1981). Bolling provides for de novo review of prior disciplinary
actions unless: "(1) [the employee] was informed of the action in
writing; (2) the action is a matter of record; and (3) [the
employee] was given the opportunity to dispute the charges to a
higher level than the authority that imposed the discipline." Id.,
at 660-661. If these conditions are met, Board review of prior
disciplinary action is limited to determining whether the action is
clearly erroneous. Id., at 660. After finding that respondent's
three prior disciplinary ac-
6
tions met Bolling's three conditions, the ALJ concluded that
there was no clear evidence of error. App. to Pet. for Cert.
A-37.
Respondent petitioned the Board for review of the ALJ's
decision. While this appeal was pending, an arbitrator resolved
respondent's first grievance (relating to the April 7 incident) in
her favor, and ordered that the letter of warning be expunged. App.
3-16. Respondent did not advise the Board of that ruling. The Board
then denied her request for review of the ALJ's determination. App.
to Pet. for Cert. A-9 to A-10.
Respondent petitioned for review of the Board's decision in the
United States Court of Appeals for the Federal Circuit. 5 U. S. C.
§ 7703(a). That court affirmed the Board's decision to uphold the
ALJ's factual findings with respect to the September 13 incident.
212 F. 3d, at 1299. Taking judicial notice of the fact that one of
the three disciplinary actions underlying respondent's termination
had been overturned in arbitration, and noting that respondent's
two remaining grievances were still pending, it reversed the
Board's determination that the penalty was reasonable. Ibid. While
recognizing that disciplinary history is an "important factor" in
assessing any penalty,
id., at 1300, the Federal Circuit
held that "prior disciplinary actions that are subject to ongoing
proceedings may not be used to support" a penalty's reasonableness,
id., at 1298. It therefore vacated the Board's decision in
part and remanded for further proceedings. Id., at 1300. We granted
certiorari, 531 U. S. 1143 (2001).
II
The Federal Circuit's statutory review of the substance of Board
decisions is limited to determining whether they are unsupported by
substantial evidence or are "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U. S. C. §
7703(c). Like its counterpart in the Administrative Procedure Act,
5 U. S. C. § 706(2), the arbi-
7
trary and capricious standard is extremely narrow, Citizens to
Preserve Overton Park, Inc. v. Volpe,
401 U. S. 402, 416
(1971), and allows the Board wide latitude in fulfilling its
obligation to review agency disciplinary actions. It is not for the
Federal Circuit to substitute its own judgment for that of the
Board. Motor Vehicle Mfrs. Assn. of United States, Inc. v. State
Farm Mut. Automobile Ins. Co.,
463 U. S. 29, 43 (1983).
The role of judicial review is only to ascertain if the Board has
met the minimum standards set forth in the statute. We conclude
that the Board need not adopt the Federal Circuit's rule in order
to meet these standards.
The Postal Service argues that the Board's independent review of
prior disciplinary actions is sufficient to meet its statutory
obligations. The adequacy of the Board's particular review
mechanism-Bolling review, see Bolling v. Department of Air Force,
supra-is not before us. The Federal Circuit said nothing about
Bolling, instead adopting a sweeping rule that the Board may never
rely on prior disciplinary actions subject to ongoing grievance
procedures, regardless of the sort of independent review the Board
provides. Respondent likewise asks this Court only to uphold the
Federal Circuit's rule forbidding independent Board review. She
does not seek a ruling requiring a different Board review
mechanism, nor did she do so before the Federal Circuit. Her brief
in that court mentioned neither Bolling nor its standard, arguing
only that the Board should hold off its review altogether pending
the outcome of collectively bargained grievance proceedings. Brief
for Petitioner in No. 00-3123
(CA Fed.), p. 2. Moreover,
even if the adequacy of Bolling review were before us, we lack
sufficient briefing on its specific functioning in this case. We
thus consider only whether the Board may permissibly review prior
disciplinary actions subject to ongoing grievance procedures
independently, not whether the particular way in which it does so
meets the statutory standard.
8
There is certainly nothing arbitrary about the Board's decision
to independently review prior disciplinary violations. Neither the
Federal Circuit nor respondent has suggested that the Board has
applied this policy inconsistently-indeed, the Board has taken this
same approach for 19 years. See Carr v. Department of Air Force, 9
M. S. P. B. 714 (1982). Nor have they argued that the Board lacks
reasons for its approach. Following the Federal Circuit's rule
would require the Board either to wait until challenges to
disciplinary actions pending in grievance proceedings are completed
before rendering its decision, or to ignore altogether the
violations being challenged in grievance in determining the
reasonableness of the penalty. The former may cause undue delay.
See Reply Brief for Petitioner 6-7. The latter would, in many
cases, effectively preclude agencies from relying on an employee's
disciplinary history, which the Federal Circuit itself acknowledged
to be an "important factor" in any disciplinary decision. 212 F.
3d, at 1300.
Nor is independent review by the Board contrary to any law. The
Federal Circuit cited no provision of the CSRA or any other statute
to justify its new rule. Id., at 1299-1300. At oral argument in
this Court, respondent's counsel pointed to the Federal Circuit's
statement that, if pending grievances were later overturned in
arbitration, "the foundation of the Board's Douglas analysis would
be compromised." Tr. of Oral Arg. 49; 212 F. 3d, at 1300 (citing
Douglas v. Veterans Admin., 5 M. S. P. B. 313 (1981)). The Board's
Douglas decision set out a general framework for reviewing agency
disciplinary actions. Because Douglas at one point specifically
discussed 5 U. S. C. § 7701(c)(1)(B), the CSRA provision placing
the burden of proof on the employing agency to justify its
disciplinary action, counsel claimed, the Federal Circuit must have
thought the Board's policy violates that section. Tr. of Oral Arg.
49. We do not read the Federal Circuit's citation of Douglas as an
implicit reference to § 7701(c)(1)(B), particularly given that the
Federal Circuit's opinion nowhere
9
mentions that section's standard. Rather, we interpret the
Federal Circuit's reference to Douglas as a way of describing the
entire process of Board review of disciplinary actions.
More importantly, any suggestion that the Board's decision to
independently review prior disciplinary actions violates §
7701(c)(1)(B)'s preponderance of the evidence standard would be
incorrect. To the extent that that standard places the burden upon
employing agencies to justify all of the violations-including those
dealt with in prior disciplinary actions-that are the basis for the
penalty, the Board has its own mechanism for allowing agencies to
meet that burden. Insofar as Bolling review is adequate to meet
this burden of proof, an employing agency may meet its statutory
burden to justify prior actions by prevailing either in grievance
or before the Board.
Amicus National Treasury Employees Union (NTEU) argues that
independent Board review of prior disciplinary actions pending in
grievance violates the CSRA's general statutory scheme. Brief for
National Treasury Employees Union as Amicus Curiae 8-12. Employees
covered by the CSRA may elect Board review only for disciplinary
actions of a certain seriousness, such as termination, suspension
for more than 14 days, or a reduction in grade or pay. 5 U. S. C.
§§ 7512-7513. For more minor actions, workers may only seek review
through negotiated grievance procedures, if they exist. § 7121.
According to NTEU, this scheme deprives the Board of the statutory
authority to review minor disciplinary actions like the three that
were pending in this case. It is true that the CSRA contemplates
that at least some eligible employees (those represented by unions)
will have two different forums for challenging disciplinary
actions, depending in part on their seriousness. If the Board had
attempted to review respondent's first disciplinary action before
she was terminated, it would have exceeded its statutory authority.
In this case, however, the Board was asked to review respondent's
termination, something it
10
clearly has authority to do. §§ 7512-7513. Because this
termination was based on a series of disciplinary actions, some of
which are minor, the Board's authority to review the termination
must also include the authority to review each of the prior
disciplinary actions to establish the reasonableness of the penalty
as a whole.
Independent Board review of disciplinary actions pending in
grievance proceedings may at times result in the Board reaching a
different conclusion than the arbitrator. It may also result in a
terminated employee never reaching a resolution of her grievance at
all, because some collective bargaining agreements require unions
to withdraw grievances when an employee's termination becomes final
before the Board. Brief for Respondent 10-11, 37; Reply Brief for
Petitioner 14. Rather than being inconsistent with the statutory
scheme, however, these possibilities are the result of the parallel
structures of review set forth in the CSRA.
Such results are not necessarily unfair. Any employee who
appeals a disciplinary action to the Board receives independent
Board review. If the Board's mechanism for reviewing prior
disciplinary actions is itself adequate, the review such an
employee receives is fair. Although the fairness of the Board's own
procedure is not before us, we note that a presumption of
regularity attaches to the actions of Government agencies, United
States v. Chemical Foundation, Inc.,
272 U. S. 1, 14-15 (1926),
and that some deference to agency disciplinary actions is
appropriate.
III
Although the Board independently reviews prior disciplinary
actions pending in grievance, it also has a policy of not relying
upon disciplinary actions that have already been overturned in
grievance proceedings at the time of Board review. See Jones v.
Department of Air Force, 24 MSPR 429, 431 (1984). As one of
respondent's disciplinary actions was overturned in arbitration
before the Board rendered its
11
decision, the Postal Service concedes that a remand to the
Federal Circuit is necessary to determine the effect of this
reversal on respondent's termination. Reply Brief for Petitioner
15-16.
The judgment of the United States Court of Appeals for the
Federal Circuit is therefore vacated, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
JUSTICE THOMAS, concurring.
While I join the Court's opinion as far as it goes, it does not
go far enough. The Court concludes that the adequacy of the
mechanism the Merit Systems Protection Board used to review prior
disciplinary actions pending in collectively bargained grievance
proceedings (the so-called Bolling framework) is a question "not
before us." Ante, at 7. I think it is.
The Federal Circuit below held that the Board, in assessing the
reasonableness of petitioner's decision to terminate respondent,
abused its discretion by relying upon prior disciplinary actions
that were pending in collectively bargained grievance proceedings.
212 F.3d
1296, 1300 (2000).
Petitioner now contests the Federal Circuit's holding by arguing
that the Board's consideration of prior disciplinary actions
subject to pending grievances does not constitute an abuse of
discretion because the Board's use of the Bolling framework, see
Bolling v. Department of Air Force, 8 M. S. P. B. 658 (1981),
provides employees with more than adequate procedural safeguards.1
Brief for Petitioner 2728. Respondent, by contrast, counters that
the Bolling framework not only is insufficient to prevent the
"unfair-
1 Petitioner's argument is certainly quite relevant here as the
Board Administrative Law Judge below considered prior disciplinary
actions in respondent's case pursuant to the Bolling framework. See
ante, at 5-6; App. to Pet. for Cert. A-36 to A-37.
12
ness" inherent in the Board's consideration of prior
disciplinary actions subject to pending grievances, but also is
inconsistent with the agency's statutory burden to show that its
decision is supported by a "preponderance of the evidence." See
Brief for Respondent 34-37. Properly disposing of this case
requires that we address these arguments.2
This is not a difficult task because the Bolling framework
provides federal employees with more than adequate procedural
safeguards. Title 5 U. S. C. § 7503(b), for instance, sets forth
the basic procedural protections to which employees receiving minor
discipline are entitled pursuant to the Civil Service Reform Act of
1978 (CSRA).3 Conspicuously absent from the statutory provision is
any opportunity to appeal a minor disciplinary action to the Board.
Thus, as petitioner points out, "it can hardly be said that the
Bolling framework for collateral review of prior discipline
conflicts with the CSRA, when Congress chose not to provide for any
[Board] review of minor disciplinary actions." See Reply Brief for
Petitioner 12-13 (emphasis in original).
Respondent's argument that the Bolling framework conflicts with
the "preponderance of the evidence" standard set forth in 5 U. S.
C. § 7701(c)(1)(B) is also unavailing. The logical consequence of
respondent's position is that the Board
2 The Court accurately notes that respondent's brief in the
Federal Circuit merely argued that the Board erred by relying upon
prior disciplinary actions and nowhere mentioned the Bolling
framework. See ante, at 7. Petitioner, however, has put the Bolling
framework squarely into play by relying upon it to support its
contention that the Board's practice of considering prior
disciplinary actions is not an abuse of discretion. Given that
petitioner, in defending the Board's practice, raises the Bolling
framework for the first time in this Court, respondent surely has
not waived her right to argue that the protections provided by the
Bolling framework are inadequate to save the practice invalidated
by the Federal Circuit.
3 This statutory provision applies to suspensions for 14 days or
less. 5 U. S. C. § 7503(a). Respondent's prior disciplinary actions
pending in grievance proceedings fall into this category.
13
would be required to review
de novo all facts supporting
all prior disciplinary actions relied upon by an agency to justify
the reasonableness of a penalty, whether or not the prior actions
were ever grieved.4 Nothing in the CSRA supports this rather
remarkable proposition. At most, the statute requires an agency to
prove the existence of prior disciplinary actions; it does not
place the burden on the agency to prove the facts underlying those
actions.
The central flaw in the Federal Circuit's decision is that it
relies on the mistaken assumption that the Board's review process
and collectively bargained grievance proceedings are somehow
linked. 212 F. 3d, at 1300. This assumption is not supported by the
CSRA. Under the statute, the Board's review process and
collectively bargained grievance procedures constitute entirely
separate structures. As a result, the Board need not wait for an
employee's pending grievances to be resolved before taking account
of prior disciplinary actions in its assessment of the
reasonableness of a penalty given in a subsequent disciplinary
action.5
4JUSTICE GINSBURG'S suggestion to the contrary, see post, at 16,
n. 2 (opinion concurring in judgment), rests on the assumption that
the Board's review process and collectively bargained grievance
proceedings are somehow linked. As explained infra this page, such
an assumption is erroneous. Title 5 U. S. C. § 7701(c)(I)(B) either
requires an agency to prove by a preponderance of the evidence all
facts supporting all prior disciplinary actions relied upon by an
agency or it does not. Whether an employee has chosen to access
collectively bargained grievance proceedings with respect to a
prior disciplinary action is irrelevant to answering this question.
Indeed, JUSTICE GINSBURG'S reasoning still suggests that the Board
must review
de novo all facts supporting all prior minor
disciplinary actions relied upon by agencies in cases where
employees are not represented by a union as such employees have no
ability to access collectively bargained grievance proceedings.
Such a requirement, however, is nowhere to be found in the
CSRA.
5 Neither would it be, as JUSTICE GINSBURG intimates, "arbitrary
and capricious" for the Board to disregard an arbitrator's reversal
of a prior disciplinary action. Post, at 15 (opinion concurring in
judgment). Such
14
GINSBURG, J., concurring in judgment
For these reasons, I agree with the Court's decision to vacate
the judgment of the Federal Circuit and remand for further
proceedings.6
JUSTICE GINSBURG, concurring in the judgment. Although I join
the Court's judgment, I do so on grounds not stated in the Court's
opinion. I note first that under Bolling v. Department of Air
Force, the Board's review of prior disciplinary actions pending in
negotiated grievance proceedings requires, in cases like this one,
only that the Board determine whether an agency action was "clearly
erroneous." 8 M. S. P. B. 658, 660 (1981). This summary and highly
deferential standard is arguably inconsistent with the statutory
requirement that the Board sustain a decision of an agency "only if
... [it] is supported by a preponderance of the evidence." 5 U. S.
C. § 7701(c)(1)(B). The Court maintains that the adequacy of
Bolling review to meet
an argument, like the Federal Circuit's holding below, rests on
the erroneous premise that the CSRA inextricably ties together the
Board's review process and collectively bargained grievance
proceedings. To be sure, the Board has chosen to link its review to
collectively bargained grievance proceedings-at least to some
extent-by adopting a policy of not relying upon disciplinary
actions that have been reversed through grievance proceedings. Cf.
Jones v. Department of Air Force, 24 MSPR 429, 430-431 (1984). But
the Board is not required to do so. Neither JUSTICE GINSBURG nor
the Federal Circuit cites any statutory provision mandating that
the Board must take this step. The CSRA simply establishes no link
between the Board's review process, which is designed to protect an
employee's statutory rights, and grievance proceedings, which
adjudicate rights secured through collective-bargaining agreements.
As the Court points out: "Independent Board review of disciplinary
actions ... may at times result in the Board reaching a different
conclusion than the arbitrator." Ante, at 10.
6 Given the Board's stated policy of not relying upon
disciplinary actions that have already been overturned in grievance
proceedings at the time of Board review, see n. 5, supra, I agree
that a remand is necessary for the Federal Circuit to consider the
relevance of the fact that one of respondent's prior disciplinary
actions had already been reversed when the Board finalized its
review of her case.
15
§ 7701(c)(1)(B)'s preponderance of the evidence standard is a
question "not before us." Ante, at 7, 10. In light of the unsettled
issue, however, I would place no reliance upon the Board's
"independent review" of prior discipline, see ante, at 7, 8, in
this case. Nevertheless, I do not resist the Court's remand order
for the reasons set out below.
MSPB regulations allow the Board to reopen an appeal and
reconsider its decision "at any time." 5 CFR § 1201.118 (2001)
("The Board may reopen an appeal and reconsider a decision of [an
administrative judge] on its own motion at any time, regardless of
any other provisions of this part."). There is every reason to
believe that the Board would reopen to reconsider a decision that
credited a prior disciplinary action later overturned in
arbitration. See Jones v. Department of Air Force, 24 MSPR 429, 431
(1984) (suspension "reversed by grievance ... was effectively
cancelled and thus should not be considered in determining a
reasonable penalty for the current charge").l Notably, the Postal
Service agrees that the Board may invoke its provision for
reopening "in the event that the employee's prior disciplinary
record has been revised as the result of a successful grievance."
Brief for Petitioner 28; see also Tr. of Oral Arg. 22 (counsel for
the Postal Service confirmed Service's recognition that "the
[B]oard's regulations permit the [B]oard to reopen any case at any
time to reconsider it in light of a grievance which may have proved
successful").
Indeed, it might well be "arbitrary and capricious" in such a
situation for the Board to disregard the employee's revised record
and refuse to reopen. Cf. 18 C. Wright, A. Miller, & E. Cooper,
Federal Practice and Procedure § 4433, p. 311 (1981) (a "judgment
based upon the preclusive effects of [a prior] judgment should not
stand if the [prior] judgment is
1 The Board thus comprehends the two schemes-its own review, and
arbitration under the bargained-for grievance procedure-as
harmonious and not, as JUSTICE THOMAS does, ante, at 13 (concurring
opinion), as entirely unrelated to each other.
16
GINSBURG, J., concurring in judgment
reversed");
id., at 312-315; Restatement (Second) of
Judgments § 16 and Comment c (1982) (nullification of an earlier
judgment on which a subsequent judgment relied "may be made the
ground for appropriate proceedings for relief from the later
judgment with any suitable provision for restitution of benefits
that may have been obtained under that judgment");
id., § 84
(generally, "a valid and final award by arbitration has the same
effects under the rules of res judicata, subject to the same
exceptions and qualifications, as a judgment of a court").2
Gregory did not bring to the Board's attention her successful
grievance of the Postal Service's first disciplinary action, i. e.,
a letter of warning dated May 13, 1997, based on the April 7, 1997,
incident, see ante, at 4; App. 43, 47-48. Under the MSPB's
regulations, she may even now ask the Board to reopen based on the
expungement of that action, or the Board may reopen "on its own
motion." 5 CFR § 1201.118 (2001); see Tr. of Oral Arg. 26 (counsel
for the Postal Service acknowledged that successful grievance of
first disciplinary action "could have been brought to the attention
of the [B]oard and still could be today"). Gregory may also bring
to the Board's attention any revision resulting from success-
2JUSTICE THOMAS suggests, ante, at 12-13 (concurring opinion),
that Gregory's argument would logically require the Board to review
de novo any prior disciplinary action upon which the employer
relied in removing an employee, "whether or not the prior actions
were ever grieved." Failure to pursue an available grievance
procedure or other avenue of appeal, however, would end the matter.
It is well settled that one who fails timely to appeal an adverse
decision is bound by that decision in later proceedings. See, e.
g., New Haven Inclusion Cases,
399 U. S. 392, 481 (1970)
(holding that a party who "took no appeal" from an adverse order is
"foreclosed by res judicata" from later seeking relief inconsistent
with that order); see also 18 Wright, Miller, & Cooper, §4433,
at 305 ("preclusion cannot be defeated by electing to fo[r]go an
available opportunity to appeal");
id., at 305-308;
Restatement (Second) of Judgments § 83 and Comment a, § 84 and
Comment e (in general, administrative adjudications and arbitration
awards have the same preclusive effects as court judgments).
17
ful grievances of the Postal Service's second and third
disciplinary actions, i. e., the seven-day suspension ordered on
June 7, 1997, see ante, at 4; App. 41-42, 45-46, and the
fourteen-day suspension ordered on August 7, 1997, see ante, at 4;
App. 38-40.
Gregory asserts that the Postal Service resists arbitration of
her second and third grievances on the ground that under the
collective-bargaining agreement between the Postal Service and her
union, predischarge grievances do not survive a discharge which has
been made final. Brief for Respondent 10-12, and n. 5, 26-27. She
does not suggest, however, that the union is disarmed from
bargaining for postdischarge continuation of grievances through to
completion of arbitration.3
Gregory, moreover, elected to resort to the MSPB "[a]t the
advice of her then-counsel." Id., at 9. She could have asked her
union to challenge her dismissal before an arbitrator.4 Had she and
her union opted for arbitration rather than MSPB review of the
dismissal, she might have fared better; it appears that a labor
arbitrator, in determining the reasonableness of a penalty, would
have accorded no weight to prior discipline grieved but not yet
resolved by a completed arbitration. See Arbitration Between
National Assn. of Letter Carriers, AFL-CIO, and USPS, Case No. E94
N-4E-D 96075418, pp. 16-18 (Apr. 19, 1999) (Snow, Arb.), Lodging of
Respondent 57-59 (referring to parties' "past practice of giving
unresolved grievances no standing in removal hearings," arbitrator
granted a continuance
3 At oral argument counsel for the Postal Service sought to
"make clear" that "if this Court reverses the decision [of the
Federal Circuit]," the Service "would not object to the continuance
of [a] grievance." Tr. of Oral Arg.55.
4 Grievances "may be appealed to ... arbitration" only "by the
certified representative of the Union." 1998-2001 Agreement Between
National Association of Letter Carriers, AFL-CIO and U. S. Postal
Service, Art. 15, § 4(A)(2).
18
GINSBURG, J., concurring in judgment
"pending resolution of an underlying disciplinary grievance");
Arbitration Between USPS and National Assn. of Letter Carriers,
AFL-CIO, Case No. D90 N-4D-D 95076768, pp. 19-21 (Mar. 20, 1996)
(Sickles, Arb.), Lodging of Respondent 27-29 (although employing
agency need not await resolution of prior grievances before
ordering an employee's removal, an arbitrator may not take account
of prior discipline until the appeals process has yielded a final
resolution); Arbitration Between USPS and National Post Office Mail
Handlers, Case No. MC-S-0874-D, p. 7 (June 18, 1977) (Fasser,
Arb.), Lodging of Respondent 7 ("Until thee] appeal [of a prior
disciplinary action] is finally adjudicated, it has no standing in
this proceeding." (emphasis added)). Gregory, having at her own
option forgone arbitration proceedings, in which prior discipline
could not weigh against her while grievances were underway, is not
comfortably situated to complain that the procedure she elected
employed a different rule.
Given (1) the Board's reopening regulation, (2) the alternative
arbitration forum Gregory might have pursued, (3) the Court's
explicit reservation of the question of "the adequacy of Bolling
review," ante, at 7, 10, and (4) the apparent, incorrect view of
the Federal Circuit that the Postal Service itself could not take
account of prior disciplinary action that is the subject of a
pending grievance proceeding, see
212 F.3d
1296, 1299, 1300 (2000),5 I agree that a remand is in
order.
5 The petition for certiorari and the brief for petitioner state
the question presented as follows: "Whether a federal agency, when
disciplining or removing an employee for misconduct pursuant to the
Civil Service Reform Act of 1978,5 U. S. C. § 1101 et seq., may
take account of prior disciplinary actions that are the subject of
pending grievance proceedings." Pet. for Cert. (I); Brief for
Petitioner (I) (emphasis added).
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