No. 00-758 

In the Supreme Court of the United States 

UNITED STATES POSTAL SERVICE, PETITIONER 

v. 

MARIA A. GREGORY 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FEDERAL CIRCUIT 

BRIEF FOR THE PETITIONER 

MARY ANNE GIBBONS 

General Counsel 

LORI J. DYM 
STEPHAN J. BOARDMAN 

Attorneys 
United States Postal Service 
Washington, D.C. 20260 
BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

PAUL D. CLEMENT 

Deputy Solicitor General 

GREGORY G. GARRE 

Assistant to the Solicitor 

General 

DAVID M. COHEN 
TODD M. HUGHES 
DAVID B. STINSON 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTION PRESENTED 

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. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statutory provisions involved .................................................... 
2 

Statement ........................................................................................ 2 

Summary of argument ................................................................. 
10 

Argument: 

In disciplining or removing a federal employee for 

misconduct pursuant to the Civil Service Reform Act 

of 1978, federal agencies may take account of prior 

disciplinary actions that are subject to pending 

grievance proceedings .......................................................... 

14 

A. The CSRA vested the MSPB with authority to 

adjudicate disputes arising under the merit 

system ............................................................................... 15 

B. For at least 19 years, the MSPB has ruled that 

federal agencies may consider prior disciplinary 

actions, even when such actions are subject to 

pending grievances ......................................................... 
18 

C. The MSPB’s rule allowing the consideration of 

prior disciplinary actions that are subject to pend- 
ing grievances promotes government efficiency, 

while protecting legitimate employee rights ............. 

24 

D. The court of appeals erred in holding that the 

MSPB abused its discretion by evaluating 

respondent’s removal in accordance with the 

longstanding administrative rule ................................ 

29 

Conclusion ....................................................................................... 41 

(III) 

IV 

TABLE OF AUTHORITIES 

Cases: Page 

Atchison, T. & S.F. R.R. v. Wichita Bd. of Trade, 

412 U.S. 800 (1973) ................................................................. 

28 

Ballew v. Department of Army, 36 M.S.P.R. 400 

(1988) ........................................................................................ 22 

Blank v. Department of the Army, No. 00-3255, 

2001 WL 392069 (Fed. Cir. Apr. 19, 2001) ........................ 

35 

Bolling v. Department of the Air Force, 8 M.S.P.B. 

658 (1981) ............................................................ 

7, 11, 

Boyd v. Veterans Admin., 20 M.S.P.R. 672 (1984) .......... 

22 

Bush v. Lucas, 462 U.S. 367 (1983)....................................... 

27 

Carr v. Department of the Air Force, 9 M.S.P.B. 

714 (1982) ................................................................................. 

21 

Clark v. Bear Stearns & Co., 966 F.2d 1318 (9th 

Cir. 1992) ................................................................................. 

34 

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 

(1985) ........................................................................................ 37 

Cornelius v. Nutt, 472 U.S. 648 (1985) ............................... 

2, 24 

Crawford v. Department of Justice, 45 M.S.P.R. 

234 (1990) ................................................................................. 

21 

Delgado v. Department of the Air Force, 36 M.S.P.R. 

685 (1988) ................................................................................. 

22 

Douglas v. Veterans Admin., 5 M.S.P.B. 313 (1981) .. 

18, 19 

FCC v. National Citizens Comm. for Broad., 436 

U.S. 775 (1978) ........................................................................ 

30 

FTC v. Invention Submission Corp., 965 F.2d 1086 

(D.C. Cir. 1992), cert. denied, 507 U.S. 910 (1993) ........ 

36-37 

Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) ........................ 

39 

Freeman v. Department of Transp., 20 M.S.P.R. 

290 (1984) ................................................................................. 

22 

Gilbert v. Homar, 520 U.S. 924 (1997) ................................ 

37 

Harrison v. Department of the Treasury, 42 M.S.P.R. 

614 (1989) ................................................................................. 

22 

Holland v. Department of Defense, 83 M.S.P.R. 317 

(1999) ........................................................................................ 21 

V 

Cases—Continued: Page 

Hubbard v. United States Postal Serv., 32 M.S.P.R. 

505 (1987) ............................................................................. 

22, 37 

Hynes v. Grimes Packing Co., 337 U.S. 86 (1949) ........... 

36 

Jones v. Department of Air Force, 24 M.S.P.R. 429 

(1984) .................................................................................... 

23, 40 

King v. Hillen, 21 F.3d 1572 (Fed. Cir. 1994) .................. 

25 

Lachance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999) ....... 

17 

Lachance v. Erickson, 522 U.S. 262 (1998) ....................... 

27 

Lopez v. Department of Justice, 55 M.S.P.R. 644 

(1992) ........................................................................................ 22 

Lovshin v. Department of Navy, 767 F.2d 826 (Fed. 

Cir. 1985), cert. denied, 475 U.S. 1111 (1986) .................. 

17 

Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) ............ 

25 

Miguel v. Department of the Army, 727 F.2d 1081 

(Fed. Cir. 1984) ....................................................................... 

37 

Morgan v. Department of Defense, 63 M.S.P.R. 58 

(1994) .................................................................................... 

22, 28 

Motor Vehicle Mfrs. Ass’n of the United States, Inc. 

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 

(1983) .................................................................................... 

18, 30 

Norfolk Shipbuilding & Drydock Corp. v. Local 

No. 684, 671 F.2d 797 (4th Cir. 1982) ................................ 

25 

Payne v. United States Postal Serv., 69 M.S.P.R. 

503 (1996) ................................................................................. 

22 

Ramseur v. Department of the Navy, 16 M.S.P.R. 

104 (1983) ................................................................................. 

22 

Rewald v. United States Postal Serv., 34 M.S.P.R. 

13 (1987) ................................................................................... 

22 

Taylor v. Department of Justice, 60 M.S.P.R. 686 

(1994) ........................................................................................ 22 

United States v. Armstrong, 517 U.S. 456 (1996) ............ 

36 

United States v. Chemical Found., Inc., 272 U.S. 1 

(1926) ........................................................................................ 36 

United States v. Fausto, 484 U.S. 439 (1988) .................. 

2, 17 

United States v. Mezzanatto, 513 U.S. 196 (1995) ........... 36 

VI 

Cases—Continued: Page 

Wilson v. Department of Justice, 58 M.S.P.R. 96 

(1993) ........................................................................................ 22 

Winston v. United States Postal Serv., 585 F.2d 198 

(7th Cir. 1978) ......................................................................... 

27 

Statutes and regulations: 

Civil Service Reform Act of 1978, Pub. L. No. 95-454, 

92 Stat. 1111 (5 U.S.C. 1101 et seq.) .................................... 

2 

5 U.S.C. 1101-1105 ........................................................... 

17 

5 U.S.C. 1204 ..................................................................... 

17 

5 U.S.C. 1204(a) ................................................................ 

17 

5 U.S.C. 2301 ................................................................. 

11, 16 

5 U.S.C. 2301(b) ................................................................ 

16 

5 U.S.C. 2301(b)(4) ........................................................... 

16 

5 U.S.C. 2301(b)(5) ........................................................... 

16 

5 U.S.C. 2301(b)(6) .............................. 

10, 

11, 

12, 

14, 

16, 

26 

5 U.S.C. 4303 ..................................................................... 
21 

5 U.S.C. 4303(e) .............................................................. 

3, 17 

5 U.S.C. 7121 ................................................................... 

3, 27 

5 U.S.C. 7121(b)(1)(C)(i)-(ii) ........................................... 
4 

5 U.S.C. 7121(b)(1)(C)(iii) ............................................... 
4 

5 U.S.C. 7121(d) ................................................................ 
36 

5 U.S.C. 7121(e) ................................................................ 
21 

5 U.S.C. 7121(e)(1) ......................................................... 
4, 21 

5 U.S.C. 7503 ..................................................................... 
27 

5 U.S.C. 7503(a) ................................................................ 
2 

5 U.S.C. 7503(b) ................................................................ 
2, 3 

5 U.S.C. 7511(a)(1)(B)(ii) ................................................. 
4 

5 U.S.C. 7511(b)(8) ........................................................... 
4 

5 U.S.C. 7512 ..................................................................... 
21 

5 U.S.C. 7513 ................................................................... 
3, 27 

5 U.S.C. 7513(a) ........................................................ 2, 11, 2 

VII 

5 U.S.C. 7513(b) ................................................................ 
2 

5 U.S.C. 7513(d) .................................................. 
3, 17, 

22, 
27 

5 U.S.C. 7701 ............................................................. 
3, 21, 2 
5 U.S.C. 7701(a) .............................................................. 
6, 17 

5 U.S.C. 7701(c)(2)(A) ...................................................... 
3 

Statutes and regulations—Continued: 

Page 

5 U.S.C. 7701(c)(2)(B) ...................................................... 
35 

5 U.S.C. 7701(e)(1)(B) ...................................................... 
22 

5 U.S.C. 7703 ..................................................................... 
3 

5 U.S.C. 7703(a) ................................................................ 
8 

5 U.S.C. 7703(c) ............................................. 
3, 10, 

18, 
29, 
39 

5 U.S.C. 7703(c)(1) ........................................................ 
12, 29 
5 U.S.C. 7703(c)(3) ............................................................ 
39 

5 U.S.C. 7703(d) ................................................................ 
28 

5 U.S.C. 706 ................................................................................ 
18 

28 U.S.C. 1295(a)(9) .................................................................. 
3 

5 C.F.R.: 

Section 1201.3 ......................................................................... 

3 

Section 1201.114 ..................................................................... 
8 

Section 1201.115(d) ................................................................ 
23 

Section 1201.115(d)(1) ....................................................... 
28, 38 

Section 1201.117 ................................................................. 
22, 24 

Section 1201.118 ................................................ 
8, 11, 

Miscellaneous: 

Agreement Between United States Postal Service and 

National Ass’n of Letter Carriers, AFL-CIO (1994- 
1998) ......................................................................................... 33 

Dep’t of Air Force Instruction No. 36-704 (July 22, 
1994) ......................................................................................... 19 

Dep’t of Army Reg. No. 690-700 ............................................. 

19 

Dep’t of Defense Admin. Instruction No. 8 (Aug. 17, 
1981) ..................................................................................... 
19, 33 

Dep’t of Navy, Office of Civilian Personnel Manage- 
ment Instruction No. 12752.1 (Nov. 16, 1989) .................. 19 

VIII 

Pamela Fagan, Do You Investigate Employee Com- 
plaints the Right Way?, 77 Human Resources Focus 
1011 (2000) ........................................................................... 
25 

Paul Falcone, A Blueprint for Progressive Discipline 
and Terminations, 77 Human Resources Focus 35 
(2000) .................................................................................... 25 

H.R. Rep. No. 1396, 95th Cong., 2d Sess. (1978) ............. 

15, 17 

Brian S. Klaas, Managerial Decision Making About 

Employee Grievances: The Impact of the Grievant’s 
Work History, 42 Personnel Psych. 52 (1989) ................. 

26 

Miscellaneous—Continued: Page 

Joseph J. Martocchio & Timothy A. Judge, When We 

Don’t See Eye to Eye: Discrepancies Between Super- 
visors and Subordinates in Absence Disciplinary 
Decisions, 21 J. Mgmt. 251 (1995) ..................................... 
26 

OPM, Federal Personnel Manual ........................................... 
20 

S. Rep. No. 969, 95th Cong., 2d Sess. (1978) ...................... 
2, 15, 

Patricia A. Simpson & Joseph J. Martocchio, The In- 
fluence of Work History Factors on Arbitration Out- 
comes, 50 Indus. & Lab. Rel. Rev. 252 (1997) ................. 
26 

United States Office of Personnel Management, The 

Fact Book: Federal Civilian Workforce Statistics 
(2000) ........................................................................................ 14 

In the Supreme Court of the United States 

No. 00-758 

UNITED STATES POSTAL SERVICE, PETITIONER 

v. 

MARIA A. GREGORY 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FEDERAL CIRCUIT 

BRIEF FOR THE PETITIONER 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-8a) 
is reported at 212 F.3d 1296. The opinion of the Merit 
Systems Protection Board (Pet. App. 9a-12a) is unpub- 
lished, but the decision is noted at 84 M.S.P.R. 619 
(Table). 

JURISDICTION 

The judgment of the court of appeals was entered on 
May 15, 2000. A petition for rehearing was denied on 
July 13, 2000 (Pet. App. 44a). On October 2, 2000, the 
Chief Justice extended the time within which to file a 
petition for a writ of certiorari to and including 
November 13, 2000. The petition for a writ of certiorari 
was filed on November 13, 2000, and was granted on 
February 20, 2001. This Court has jurisdiction under 
28 U.S.C. 1254(1). 

(1a) 

2 

STATUTORY PROVISIONS INVOLVED 

The pertinent provisions of the Civil Service Reform 
Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (5 U.S.C. 
1101 et seq.) are reproduced at Pet. App. 45a-58a. 

STATEMENT 

1. The Civil Service Reform Act of 1978 (CSRA), 
5 U.S.C. 1101 et seq., “comprehensively overhauled the 
civil service system” and established a “new framework 
for evaluating adverse personnel actions against 
[federal employees].” United States v. Fausto, 484 U.S. 
439, 443 (1988) (internal quotation marks omitted). In 
particular, the Act gave “agencies greater ability to 
remove or discipline expeditiously employees who en- 
gage in misconduct,” Cornelius v. Nutt, 472 U.S. 648, 
662-663 (1985) (quoting S. Rep. No. 969, 95th Cong., 2d 
Sess. 51 (1978)), because of “complain[ts]” that the 
“complex rules and procedures” that had developed 
under the prior regime to “protect employees from ar- 
bitrary management actions ha[d] too often become the 
refuge of the incompetent employee,” S. Rep. No. 969, 
supra, at 3. 

The CSRA authorizes federal agencies to take ad- 
verse action against a covered employee—including 
removal, suspension, or demotion—“for such cause as 
will promote the efficiency of the service.” 5 U.S.C. 
7503(a), 7513(a). Affected employees, however, enjoy 
significant procedural protections in defending against 
such actions, including the right to counsel or another 
representative, the right to receive advance notice of 
the proposed action, an opportunity to respond orally 
and in writing, and a written statement of the reasons 
for the action. 5 U.S.C. 7503(b), 7513(b). An employee 
who receives a suspension of greater than 14 days, or 
more severe penalty such as removal, may appeal the 

3 

agency’s decision to the Merit Systems Protection 
Board (MSPB). 5 U.S.C. 4303(e), 7513(d), 7701; see 
5 C.F.R. 1201.3. 

The MSPB must sustain the agency’s decision if it is 
supported by a preponderance of the evidence and the 
employee does not show that the decision was the 
result of “harmful error in the application of the 
agency’s procedures,” a prohibited employment prac- 
tice such as discrimination, or another violation of law. 
5 U.S.C. 7701(c)(2)(A). An employee may obtain review 
of an adverse MSPB decision in the United States 
Court of Appeals for the Federal Circuit. 5 U.S.C. 
7703; 28 U.S.C. 1295(a)(9). However, the Federal Cir- 
cuit owes the MSPB’s decision considerable deference. 
The Federal Circuit may set aside the Board’s decision 
only if it is “(1) arbitrary, capricious, an abuse of discre- 
tion, 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.” 5 U.S.C. 7703(c). 

The CSRA also provides an alternative avenue for 
challenging adverse agency actions, including less seri- 
ous disciplinary actions not subject to MSPB review.1 
An employee who is a member of a union may challenge 
a disciplinary action by invoking the grievance pro- 
cedure set forth in the governing collective bargaining 
agreement. 5 U.S.C. 7121. The grievance may be 

1 Federal employees who receive suspensions of 14 days or less 
are entitled to basic procedural protections afforded by Section 
7513—i.e., notice, an opportunity to respond, representation, and a 
written decision, 5 U.S.C. 7503(b)—but they are not entitled to 
appeal adverse decisions to the MSPB. However, employees may 
challenge such short-term suspensions or other less severe discipli- 
nary actions, pursuant to the grievance procedure established by 
the pertinent collective bargaining agreement. 5 U.S.C. 7121. 

4 

presented by the employee or by a union representa- 
tive on the employee’s behalf. 5 U.S.C. 7121(b)(1)(C)(i)- 
(ii). Any grievance procedure must provide that either 
the agency or the union may invoke binding arbitration. 
5 U.S.C. 7121(b)(1)(C)(iii). An employee who is the 
subject of a major adverse action, such as a suspension 
of greater than 14 days or removal, has the option 
either to appeal the action to the MSPB or to challenge 
it pursuant to a negotiated grievance procedure, “but 
not both.” 5 U.S.C. 7121(e)(1). 

2. Respondent is a covered federal employee under 
the CSRA. 5 U.S.C. 7511(a)(1)(B)(ii) and (b)(8). The 
United States Postal Service (Postal Service) employed 
her as a letter technician until she was removed in 
November 1997 for unsatisfactory performance. Pet. 
App. 1a. The responsibilities of a letter technician 
resemble those of a regular mail carrier, but are more 
extensive. Letter technicians must be familiar with 
five mail routes, rather than one. Letter technicians 
also must train new carriers, report route problems, 
and provide assistance on other routes. Before they 
begin a mail delivery route, letter technicians (like 
regular carriers) must complete a form stating whether 
they need additional assistance or overtime to complete 
the route. The Postal Service holds all carriers to a 
high standard in accurately completing such forms, 
requiring letter technicians and carriers to estimate the 
time required to complete a route within a margin of 
error of 15 to 20 minutes. Id. at 15a-16a. 

Respondent was disciplined on three separate occa- 
sions between May 1997 and August 1997. On May 13, 
1997, respondent received a letter of warning for insub- 
ordination after she left work for a doctor’s appoint- 
ment without first putting her day’s mail in order. Pet. 
App. 2a, 36a. Less than a month later, on June 7, 1997, 

5 

respondent received a seven-day suspension for delay- 
ing the mail and failing to follow instructions. Id. at 2a. 
Two months later, on August 7, 1997, respondent 
received a 14-day suspension for delaying the mail, 
claiming unauthorized overtime, failing to follow in- 
structions, and performing her duties in an unsatisfac- 
tory manner. Ibid. In providing notice of the charge, 
respondent’s supervisor recounted that respondent had 
“made 1.24 units of unauthorized overtime” on July 18, 
1997, and another “.62 units of unauthorized overtime” 
the following day, and that on July 25 and 26, 
respondent had delayed her “street time for the 
purpose of making [unauthorized] overtime.” J.A. 38- 

39. The union representing respondent filed grievances 
challenging each of those disciplinary actions pursuant 
to the procedure established by the pertinent collective 
bargaining agreement. Pet. App. 5a. 

On September 13, 1997, after serving her 14-day 
suspension, respondent requested 3.5 hours of overtime 
(or assistance from another carrier) to prepare and 
deliver the mail on her route. Pet. App. 14a. That 
request “seemed like a gross overestimate” to respon- 
dent’s supervisor. Id. at 17a. The supervisor later 
testified that respondent had “a low volume of mail” on 
the day in question; that he could not recall another 
request for so much overtime during a non-holiday 
period; and that any request for more than two hours of 
overtime “sends up a red flag.” Ibid. The supervisor 
reassigned some of respondent’s mail to other letter 
carriers and accompanied respondent on her route. Id. 
at 17a-18a. The supervisor observed no unusual condi- 
tions on the route, and respondent did not appear to 
suffer any physical impairment. Id. at 18a-19a. On the 
basis of his observations and the amount of time 
actually taken by respondent and the other letter carri- 

6 

ers, the supervisor charged respondent with over- 
estimating her time by 1.5 hours, far in excess of the 15- 
to-20-minute margin of error allowed for letter carriers. 
Id. at 15a, 29a. 

On September 18, 1997, the supervisor gave respon- 
dent written notice that he proposed removing her for 
unsatisfactory performance. J.A. 31-33. In the notice of 
proposed removal, the supervisor focused on respon- 
dent’s September 1997 overtime request, but also 
stated that he had considered respondent’s prior disci- 
plinary record. J.A. 32. Respondent replied to the 
letter through an attorney and met with a senior 
personnel officer. On November 17, 1997, the officer 
issued a removal decision, concluding that respondent’s 
“removal will promote the efficiency of the Postal 
Service.” J.A. 28. In so finding, the personnel officer 
explained that he could not credit respondent’s 
explanation for her September 1997 overtime request. 
J.A. 25-28. The personnel officer also pointed to 
respondent’s prior disciplinary record with respect to 
“similar conduct.” J.A. 28. Respondent was dismissed 
from the Postal Service effective November 26, 1997. 

3. Respondent appealed the Postal Service’s deci- 
sion to the MSPB. 5 U.S.C. 7701(a). She argued that, 
among other things, her removal was motivated by 
discrimination upon the basis of her race, sex, age, and 
disabled status, and constituted retaliation for her filing 
of 32 discrimination complaints with the agency’s Equal 
Employment Opportunity (EEO) office. After two days 
of hearings, an administrative judge of the MSPB 
affirmed the Postal Service’s decision to remove re- 
spondent, finding that “[respondent]’s removal pro- 
motes the efficiency of the [civil] service.” Pet. App. 
40a. The administrative judge upheld the Postal Ser- 
vice’s finding that respondent failed to perform her 

7 

duties in a satisfactory manner, id. at 14a-30a, and 
rejected respondent’s affirmative defenses of discrimi- 
nation and retaliation, id. at 30a-35a, finding “no 
evidence” that the Postal Service had acted against 
respondent on any improper basis. Id. at 30a, 32a, 35a. 

The administrative judge also upheld the penalty of 
removal. Pet. App. 36a. The administrative judge 
recognized that, in deciding to remove respondent, the 
Postal Service had relied upon the nature of the charge, 
“the fact that there was no room for [respondent’s 
overestimate] to have been a mistake,” and respon- 
dent’s history of similar offenses. Ibid. Because the 
prior disciplinary actions against respondent were in 
writing, a matter of record, and subject to grievance, 
the administrative judge limited review of those earlier 
actions to determining whether they were clearly 
erroneous. Id. at 37a (citing Bolling v. Department of 
the Air Force, 8 M.S.P.B. 658, 659-661 (1981)). Respon- 
dent did not argue in support of her appeal that the 
prior actions against her were improper. Nevertheless, 
the administrative judge reviewed those actions and 
found that they were not clearly erroneous, and there- 
fore concluded “that the agency properly considered 
[respondent]’s prior disciplinary actions.” Ibid. 

The administrative judge further found that respon- 
dent’s removal was “within the bounds of reasonable- 
ness.” Pet. App. 39a. The administrative judge ex- 
plained that, “[a]t first blush, a removal for one instance 
of failure to perform duties satisfactorily may appear 
unreasonable.” Id. at 37a. But, in light of the fact that 
“[respondent]’s prior disciplinary actions also involved 
unauthorized overtime, that one instance takes on 
additional significance and tends to reveal a pattern of 
conduct by [respondent] to disregard the agency’s and 
her supervisor’s expectations of her performance and 

8 

conduct.” Id. at 37a-38a. The administrative judge also 
found that respondent’s latest “overestimate” of her 
route time was “intentional,” id. at 38a, and that 
respondent’s own MSPB testimony indicated that she 
still “refuses to accept the instructions” of her supervi- 
sors and, thus, “has little potential for rehabilitation,” 
id. at 39a. 

Respondent petitioned the full Board for review of 
the administrative judge’s decision. 5 C.F.R. 1201.114. 
While that petition was before the MSPB, an arbitrator 
sided with respondent in resolving the grievance filed 
in response to the first disciplinary action—the May 
1997 letter of warning for insubordination, which did 
not involve an overtime estimate—and ordered that the 
warning be expunged from respondent’s record. Pet. 
App. 5a; see J.A. 3-16. Respondent did not advise the 
MSPB of that ruling. The Board denied respondent’s 
petition for review on October 20, 1999, concluding that 
respondent had not provided any “new, previously 
unavailable, evidence,” and that “the administrative 
judge made no error in law or regulation that affects 
the outcome.” Pet. App. 9a-10a. Although the MSPB’s 
rules permit the Board to reopen a decision for recon- 
sideration in light of new evidence or any other con- 
sideration, 5 C.F.R. 1201.118, respondent never moved 
to reopen the MSPB’s decision. 

4. Respondent petitioned for review of the MSPB’s 
decision in the Federal Circuit, 5 U.S.C. 7703(a), and 
that court affirmed in part, vacated in part, and 
remanded for further proceedings. Pet. App. 1a-8a. 
Deciding the case without argument, the court affirmed 
the MSPB’s determination that respondent failed to 
perform her duties in a satisfactory manner, as well as 
the MSPB’s rejection of respondent’s discrimination 
and retaliation claims. Id. at 4a-5a; see id. at 5a (“[N]o 

9 

evidence was introduced that would show that 
discrimination or retaliation played any role in the 
evaluation of [respondent’s] performance or penalty.”). 
Nonetheless, the court vacated the MSPB’s approval of 
the removal penalty on the ground that the MSPB 
“erred when it rested its analysis of the reasonableness 
of the penalty upon her three prior disciplinary actions, 
at least some of which were then the subject of 
grievance proceedings.” Id. at 5a. 

Although petitioner never brought the arbitrator’s 
decision to the MSPB’s attention, the court of appeals 
took “judicial notice” that an arbitrator had overturned 
the Postal Service’s May 1997 letter of warning to 
respondent, and that other grievances to respondent’s 
disciplinary record remained pending. Pet. App. 5a-6a. 
More broadly, the court of appeals “h[e]ld that, as a 
matter of law, consideration may not be given to prior 
disciplinary actions that are the subject of ongoing 
proceedings challenging their merits.” Id. at 7a. “To 
conclude otherwise,” the court reasoned, “would risk 
harming the legitimacy of the reasonable penalty 
analysis, by allowing the use of unreliable evidence (the 
ongoing prior disciplinary actions) to support an agency 
action.” Ibid. Thus, because the MSPB relied upon 
“prior actions that were the subject of ongoing griev- 
ance proceedings” in concluding that respondent’s 
removal was reasonable, the court concluded that “the 
Board abused its discretion,” and vacated its decision. 
Ibid. The court remanded to the MSPB for a deter- 
mination whether the case should be sent back to the 
Postal Service for it “to select a penalty in light of the 
precise status of [respondent]’s prior disciplinary 
record,” or whether the MSPB itself should set a new 
penalty. Id. at 7a-8a. 

10 

On July 13, 2000, the court of appeals denied the 
Postal Service’s petition for rehearing. Pet. App. 44a. 

SUMMARY OF ARGUMENT 

The Federal Circuit erred in holding that, in disci- 
plining or removing employees pursuant to the CSRA, 
federal agencies may not consider prior disciplinary 
actions that are subject to pending grievances. Both 
longstanding administrative practice and common sense 
support the MSPB’s rule that agencies may consider an 
employee’s disciplinary record—without regard to 
pending grievances—in calibrating the discipline for 
subsequent misconduct. That rule is not arbitrary, 
capricious, or otherwise contrary to law. 5 U.S.C. 
7703(c). Accordingly, it should be given effect. 

A. The CSRA overhauled the civil service system 
with the objective of making the system more efficient 
and effective. Congress established several merit 
principles to guide federal personnel matters, including 
the principles that “inadequate performance should be 
corrected, and employees should be separated who 
cannot or will not improve their performance to meet 
required standards.” 5 U.S.C. 2301(b)(6). In addition, 
Congress sought to give federal agencies more leeway 
in disciplining or removing employees for incompe- 
tence, while protecting legitimate employee rights. As 
part of the overhaul, Congress established the MSPB 
and vested it with authority to adjudicate challenges to 
agency action taken pursuant to the CSRA. In per- 
forming that role, Congress intended the MSPB to act 
as a “watch dog” over the merit system in practice. 
Congress specifically limited the scope of judicial 
review of MSPB decisions. 5 U.S.C. 7703(c). 

B. For nearly two decades, the MSPB has followed 
the common sense rule that federal agencies may rely 

11 

on an employee’s disciplinary record in assessing the 
appropriate discipline for subsequent misconduct, 
without regard to whether prior disciplinary actions are 
subject to pending grievances. At the same time, 
however, the MSPB permits employees to challenge an 
agency’s reliance on such prior actions and to attack the 
prior actions collaterally under a framework that 
specifically takes into account the procedural protec- 
tions that the employee received in the prior action. 
Bolling v. Department of the Air Force, 8 M.S.P.B. 658 
(1981). In addition, if a prior action is set aside after the 
MSPB has affirmed an agency decision relying upon 
that action, the Board can reopen its decision and recon- 
sider whether the agency decision remains appropriate. 
5 C.F.R. 1201.118. 

C. The MSPB’s longstanding procedure “promote[s] 
the efficiency of the service.” 5 U.S.C. 7513(a). Experi- 
ence teaches that recent disciplinary history is highly 
relevant in assessing an employee’s competence for 
continuing service. That is particularly true where an 
employee engages in a pattern or practice of mis- 
conduct that, when considered as a whole, warrants 
more serious action than might be appropriate in 
response to a single infraction standing alone. Allowing 
federal agencies to consider an employee’s disciplinary 
record—without regard to pending grievances—also 
promotes the merit system principles. 5 U.S.C. 2301. 
Indeed, considering an employee’s prior record is 
necessary to ensure that “inadequate performance [is] 
corrected” and to separate employees “who cannot or 
will not improve their performance.” 5 U.S.C. 
2301(b)(6). 

D. In overturning the MSPB’s longstanding rule, the 
Federal Circuit fundamentally misconceived the limited 
scope of its review under the CSRA and improperly 

12 

substituted its policy judgment for that of the Board. 
The court of appeals’ review is limited to determining 
whether the MSPB’s rule is “arbitrary, capricious, an 
abuse of discretion, or otherwise not in accordance with 
law.” 5 U.S.C. 7703(c)(1). Nothing in the CSRA pre- 
vents an agency from considering prior disciplinary 
actions in deciding what discipline is appropriate, even 
when the prior actions remain subject to grievances. 
And, in fact, foreclosing consideration of an employee’s 
recent disciplinary record would disserve the objectives 
of the Act, without advancing legitimate employee 
rights. 

Although the Federal Circuit did not “doubt” (Pet. 
App. 6a) the importance of considering an employee’s 
prior disciplinary record, the court’s rule makes mean- 
ingful consideration of an employee’s prior record 
difficult, if not impossible. Because grievance proceed- 
ings typically take several months or years to complete, 
the court’s rule would prevent federal agencies from 
taking into account substantial aspects of an employee’s 
disciplinary record, and indeed, the most recent and 
therefore most relevant aspects of that record. That, in 
turn, would effectively prevent an agency from employ- 
ing graduated disciplinary measures against employees 
“who cannot or will not improve their performance.” 
5 U.S.C. 2301(b)(6). The Federal Circuit precluded 
reliance on prior actions subject to grievances without 
applying appropriate deference to either the MSPB or 
the employing agency, both of which favored considera- 
tion of the employee’s full record. 

The Federal Circuit’s rule creates counterproductive 
incentives for employees to abuse grievance proce- 
dures. Because the rule immunizes employees from 
cumulative discipline for as long as prior disciplinary 
actions remain subject to pending grievances, the rule 

13 

provides employees with an incentive to challenge 
practically any disciplinary action, even minor ones, and 
to prolong such proceedings for as long as possible. 
Such challenges not only provide no basis for dis- 
regarding the challenged disciplinary action, but also 
impose an added burden on the administrative and 
judicial review process established by the CSRA. That 
added burden, in turn, could interfere with the rights of 
employees who have been wrongfully aggrieved by 
adverse agency action, but find themselves caught in a 
backlog of cases created by strategic grievances or 
appeals. 

Nor is the Federal Circuit’s rule compelled by any 
principle of due process. Aggrieved employees enjoy 
more than ample process in challenging an agency’s 
reliance on prior disciplinary actions that remain 
subject to pending grievances. The employee can chal- 
lenge the agency’s reliance on the prior disciplinary 
actions consistent with the Bolling framework, which 
allows for some review of all prior actions on which the 
agency relied and for de novo review of any prior 
actions that were not accompanied by procedural 
protections. Moreover, if a prior action is ultimately 
overturned or modified, the employee may invoke the 
Board’s reopening procedure, under which the Board 
can reconsider its decision at any time in light of any 
later development. 5 C.F.R. 1201.118. 

The Federal Circuit erroneously held that discipline 
of a federal employee may not be based on prior dis- 
ciplinary actions that are subject to pending grievance. 
Its judgment vacating the decision of the MSPB in this 
case should be reversed and the case remanded for 
further proceedings. 

14 

ARGUMENT 

IN DISCIPLINING OR REMOVING A FEDERAL 
EMPLOYEE FOR MISCONDUCT PURSUANT TO THE 
CIVIL SERVICE REFORM ACT OF 1978, FEDERAL 
AGENCIES MAY TAKE ACCOUNT OF PRIOR 
DISCIPLINARY ACTIONS THAT ARE SUBJECT TO 
PENDING GRIEVANCE PROCEEDINGS 

With nearly three million civilian employees, United 
States Office of Personnel Management, The Fact Book: 
Federal Civilian Workforce Statistics 8 (2000), the 
federal government is the Nation’s largest employer. 
Federal agencies inevitably must deal with instances of 
employee misconduct and unsatisfactory performance. 
Like their private-sector counterparts, federal employ- 
ers seek to calibrate disciplinary action to the specific 
circumstances presented by an employee’s record, 
including not only the circumstances surrounding the 
current infraction but also any relevant prior discipli- 
nary actions against the employee. Like private-sector 
employers, federal agencies consider employees’ dis- 
ciplinary records as a matter of common sense. In 
addition, federal agencies are guided by the statutory 
merit principle that employees “who cannot or will not 
improve their performance” should be “separated.” 
5 U.S.C. 2301(b)(6). A recidivist employee who has 
repeatedly engaged in similar misconduct has demon- 
strated that she “cannot or will not improve” her per- 
formance. As the court of appeals recognized below, 
“[t]here is no doubt that prior disciplinary actions are 
an important factor when considering whether a 
particular penalty is reasonable under given circum- 
stances.” Pet. App. 6a (citing cases). We do not 
understand respondent to quarrel with that common 
sense proposition. 

15 

The question presented in this case is whether fed- 
eral employers may take account of prior disciplinary 
actions that are subject to pending grievances. As we 
explain below, the longstanding rule followed by federal 
employers and the MSPB is that such prior actions may 
be considered in assessing the appropriate discipline for 
repeated misconduct. The Federal Circuit held that the 
MSPB erred when—consistent with that settled rule— 
the Board relied upon respondent’s prior disciplinary 
actions in affirming the Postal Service’s decision to 
remove respondent, when those actions remained 
subject to pending grievances. Pet. App. 2a, 8a. That 
decision denies federal employers the opportunity to 
consider any prior disciplinary action subject to a 
grievance, no matter how relevant to the present per- 
sonnel action. The Federal Circuit did not identify any 
authority that compelled that result. As we explain 
below, its decision defies common sense, undermines 
the efficiency of the federal service, and should not 
stand. 

A. The CSRA Vested The MSPB With Authority To 

Adjudicate Disputes Arising Under The Merit System 

1. Before the enactment of the CSRA, there was 
widespread belief that the “merit principle” had suf- 
fered under the civil service system. S. Rep. No. 969, 
supra, at 3. As President Carter stated in his message 
transmitting proposed legislation to Congress, while 
the prior system had succeeded in developing “a Fed- 
eral work force which is basically honest, competent, 
and dedicated,” “the system has serious defects,” in- 
cluding that it “neglects merit,” “tolerates poor per- 
formance,” and “permits abuse of legitimate employee 
rights.” H.R. Rep. No. 1396, 95th Cong., 2d Sess. 2 
(1978) (quoting transmittal message). As a result of 

16 

those defects, morale suffered among federal employers 
and employees, and the public perceived that the civil 
service system had “too often become the refuge of the 
incompetent employee.” S. Rep. No. 969, supra, at 3. 

The CSRA overhauled that system with the objec- 
tive of making the federal government more “efficient 
and effective” by “[a]llow[ing] civil servants to be able 
to be hired and fired more easily, but for the right 
reasons.” S. Rep. No. 969, supra, at 4. To that end, 
Congress adopted several “merit system principles,” 
and directed that “[f]ederal personnel management 
should be implemented consistent with th[ose] * * * 
principles.” 5 U.S.C. 2301(b). Those principles include 
the following: 

(4) All employees should maintain high stan- 
dards of integrity, conduct, and concern for the 
public interest. 

(5) The Federal work force should be used 
efficiently and effectively. 

(6) Employees should be retained on the basis of 
the adequacy of their performance, inadequate per- 
formance should be corrected, and employees should 
be separated who cannot or will not improve their 
performance to meet required standards. 

5 U.S.C. 2301. 

2. The MSPB was an important component of the 
civil service scheme established by the CSRA. Before 
the CSRA, the Civil Service Commission had the 
responsibility for both personnel management and 
overseeing the merit system, a dual role that many 
concluded could not be well-served by one agency. 
S. Rep. No. 969, supra, at 5, 24. The CSRA abolished 
the Commission and replaced it with two agencies: the 

17 

Office of Personnel Management (OPM) and the MSPB. 
Congress gave OPM the central responsibility for “per- 
sonnel management and agency advisory functions,” id. 
at 5; see 5 U.S.C. 1101-1105, and Congress “charged” 
the MSPB “with insuring adherence to merit system 
principles and laws,” S. Rep. No. 969, supra, at 5; see 
5 U.S.C. 1204. See also S. Rep. No. 969, supra, at 6 
(“The [MSPB] * * * is made responsible for safe- 
guarding the effective operation of the merit principles 
in practice.”); id. at 24 (“The [MSPB] is charged with 
protecting the merit system.”); H.R. Rep. No. 1396, 
supra, at 5 (The MSPB was established “to serve as a 
‘watch dog’ over the integrity of the merit system.”). 

To enable the MSPB to fulfill that “watch dog” role, 
Congress gave the Board “primacy” over the “admin- 
istrative resolution of disputes over adverse personnel 
action,” United States v. Fausto, 484 U.S. 439, 449 
(1988), and vested it with broad adjudicatory powers. 
See 5 U.S.C. 1204(a), 4303(e), 7513(d), 7701(a). As this 
Court has recognized, that scheme “enables the devel- 
opment, through the MSPB, of a unitary and consistent 
Executive Branch position on matters involving per- 
sonnel action.” Fausto, 484 U.S. at 449. 

Rather than relying simply on judicially recognized 
principles of deference,2 Congress explicitly limited the 

2 The Federal Circuit, which has exclusive jurisdiction to 
review the decisions of the MSPB, has recognized that settled 
principles governing the deference owed to the policies or rules of 
federal agencies charged with administering statutory programs 
apply to the MSPB. See, e.g., Lovshin v. Department of Navy, 767 
F.2d 826, 840 (Fed. Cir. 1985) (“[D]eference is appropriately given 
to the MSPB’s interpretation of the CSRA. Congress has vested 
the MSPB with substantial responsibility for enforcing the Act.”), 
cert. denied, 475 U.S. 1111 (1986), quoted in Lachance v. Devall, 
178 F.3d 1246, 1254 (Fed. Cir. 1999). 

18 

scope of judicial review of MSPB decisions. The 
Federal Circuit may set aside the Board’s decision only 
if 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.” 5 U.S.C. 7703(c). As Congress appreciated 
when it enacted the CSRA, that scope of review tracks 
“the traditionally limited appellate review the courts 
provide agency actions in other areas.” S. Rep. No. 969, 
supra, at 52. See, e.g., 5 U.S.C. 706; see also Motor 
Vehicle Mfrs. Ass’n of the United States, Inc. v. State 
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“The 
scope of review under the ‘arbitrary and capricious’ 
standard is narrow and a court is not to substitute its 
judgment for that of the agency.”). 

B. For At Least 19 Years, The MSPB Has Ruled That 

Federal Agencies May Consider Prior Disciplinary 

Actions, Even When Such Actions Are Subject To 

Pending Grievances 

In the more than two decades since its creation, the 
MSPB has developed a significant body of case law in 
adjudicating disputes under the CSRA. This case 
involves a challenge to the well-settled MSPB rule that, 
in disciplining or removing employees pursuant to the 
CSRA, federal employers may take account of prior 
disciplinary actions against an employee, even when 
such actions are subject to pending grievance proceed- 
ings. 

1. Federal employers and the MSPB have long rec- 
ognized that an employee’s past disciplinary record is 
an important ingredient in considering the appropriate 
sanction for subsequent misconduct. In Douglas v. 
Veterans Administration, 5 M.S.P.B. 313 (1981), the 

19 

MSPB recognized that Congress authorized the Board 
to review the reasonableness of discipline imposed by 
agencies and mitigate actions that are “clearly exces- 
sive, disproportionate to the sustained charges, or 
arbitrary, capricious, or unreasonable.” Drawing upon 
a “well developed body of regulatory and case law,” the 
MSPB identified a non-exhaustive list of factors that 
are “generally recognized as relevant” to the penalty 
determination, including the “employee’s past discipli- 
nary record.” Id. at 330-332. Both before and after 
Douglas, numerous federal agencies have enacted rules 
instructing supervisors to consider an employee’s prior 
disciplinary record in assessing subsequent discipline.3 

Shortly after it decided Douglas, the MSPB consid- 
ered whether an employee may collaterally attack in an 
MSPB appeal the prior disciplinary record upon which 
an agency’s subsequent penalty is based. Bolling v. 
Department of the Air Force, 8 M.S.P.B. 658 (1981). In 
answering that question, the MSPB looked to the 
practice followed by the Civil Service Commission. As 

3 See, e.g., Dep’t of Defense Admin. Instruction No. 8, § 6.1.1.1 
(Aug. 17, 1981) (In disciplining employee, deciding official should 
consider, inter alia, “ * * * previous offenses.”); Dep’t of Army 
Reg. No. 690-700, ch. 751, paras. 1-4 (“prior offense of any type 
may form the basis for proposing an enhanced penalty”); Dep’t of 
Air Force Instruction No. 36-704, § F(34) (July 22, 1994) (“Supervi- 
sors and managers apply increasingly more severe penalties as the 
employee continues to breach the employee-employer relation- 
ship.”); Dep’t of Navy, Office of Civilian Personnel Management 
Instruction No. 12752.1, App. B(2)(b) (Nov. 16, 1989) (“Any past 
offense may form the basis for proposing a remedy from the next 
higher range of remedies for a subsequent offense. The offenses 
need not be identical or similar.”). At the same time, however, 
agency rules or collective bargaining agreements often provide 
that prior disciplinary actions shall not be considered after a period 
of reckoning of two or three years. See p. 33, infra. 

20 

it explained, the Federal Personnel Manual allowed for 
relatively deferential review of past disciplinary actions 
when certain procedural safeguards were followed in 
assessing prior discipline. See id. at 658-659 (quoting 
Federal Personnel Manual, Supp. 752-1, S4-3b(1) (“Ref- 
erence to past disciplinary record”)). 

Adopting a similar approach, the MSPB in Bolling 
held that, when the Board reviews a disciplinary action 
based upon the employee’s prior disciplinary record, 
the prior record is open to review, but the scope of 
review varies with the procedural protections enjoyed 
by the employee in the prior disciplinary proceeding. 
8 M.S.P.B. at 658-659. In determining the proper scope 
of review, the MSPB looks to whether the employee 
received notice of the prior action in writing and had an 
opportunity to challenge it, and whether the action is a 
matter of record. Id. at 659, 660-661. If one or more of 
those procedural protections was not observed, the 
MSPB undertakes “a full, de novo review” of the earlier 
disciplinary action as part of its review of the later 
disciplinary decision. Id. at 659. When all of those 
procedural protections were afforded, by contrast, the 
MSPB will credit the agency’s reliance on the prior 
action unless the employee can show, based upon the 
existing record from the earlier proceeding, that the 
earlier action was “clearly erroneous.” Id. at 660-661. 

As the MSPB reasoned in Bolling, the foregoing 
analysis “strikes a reasonable and workable balance 
between the competing interests involved”: “an appel- 
lant is not allowed to relitigate issues that either were, 
or could have been, thoroughly litigated previously,” 
but “agencies are not able to utilize clearly erroneous 
prior actions as aggravating factors so as to enhance 
the penalties imposed.” 8 M.S.P.B. at 660. In the 
nearly two decades since Bolling, the MSPB has 

21 

applied that framework in scores of cases—including 
the instant one, Pet. App. 36a-37a—to decide whether 
an agency properly relied upon an employee’s prior 
disciplinary record in taking subsequent disciplinary 
action against that employee. See, e.g., Holland v. 
Department of Defense, 83 M.S.P.R. 317, 320-322 (1999); 
Crawford v. Department of Justice, 45 M.S.P.R. 234, 
236 n.1 (1990) (citing cases). 

2. On the heels of Douglas and Bolling, the MSPB 
confronted the question presented here: whether, in 
disciplining or removing an employee, an agency may 
rely upon prior disciplinary actions that are “the 
subject of pending grievance or arbitration proce- 
dures.” Carr v. Department of the Air Force, 
9 M.S.P.B. 714 (1982). The Board answered that 
question in the affirmative, holding that consideration 
of a prior action that is subject to a pending grievance is 
proper under Douglas, but that an employee may 
challenge that action consistent with the framework 
established by Bolling. Id. at 715.4 In the 19 years 

4 The appellant in Carr argued that 5 U.S.C. 7121(e) “divests 
the Board of appellate jurisdiction over matters grieved under a 
negotiated grievance procedure.” 9 M.S.P.B. at 714. As the Board 
explained, however, Section 7121(e) only divests the MSPB of 
jurisdiction over disciplinary actions that are covered by 5 U.S.C. 
4303 and 7512 (and thus appealable to the MSPB), and that the 
employee elects to challenge pursuant to a grievance procedure 
rather than an MSPB appeal. 9 M.S.P.B. at 714. See 5 U.S.C. 
7121(e)(1) (employee may elect to challenge such an action pur- 
suant to “the appellate procedures of [5 U.S.C. 7701] or under the 
negotiated grievance procedure, but not both”). Thus, where, as in 
Carr, the prior disciplinary action (a one-day suspension) that is 
the subject of a pending grievance is not appealable to the MSPB 
in the first place, the MSPB held that nothing in Section 7121(e)(1) 
prevents the Board from considering the action in reviewing a 

22 

since Carr was decided, the MSPB repeatedly has 
affirmed the principle that “an agency may rely on a 
record of past discipline even where a prior disciplinary 
action is the subject of a pending grievance.” Freeman 

v. Department of Transp., 20 M.S.P.R. 290, 292 (1984).5 
The MSPB also provides employees with an addi- 
tional protection. “If the ultimate result of the griev- 
ance process is to reverse [an aspect of] the appellant’s 
prior record, he may submit a request that the Board 
reopen its decision to consider the effect of that deter- 
mination on the removal penalty.” Morgan v. Depart- 
ment of Defense, 63 M.S.P.R. 58, 62 n.3 (1994). See 
5 U.S.C. 7701(e)(1)(B); 5 C.F.R. 1201.117. The Board is 
receptive to such requests. See, e.g., Payne v. United 
States Postal Serv., 69 M.S.P.R. 503, 508 (1996) (grant- 
ing motion to reopen MSPB decision and reversing 
agency’s decision to remove employee based on court of 
appeals decision reversing the criminal conviction on 
which the agency had relied in removing employee); cf. 
Lopez v. Department of Justice, 55 M.S.P.R. 644, 646 
(1992) (cancellation of a suspension on which the agency 
had relied in imposing discipline provided good cause 

subsequent disciplinary action (the employee’s removal) that was 
properly appealed to the MSPB. 5 U.S.C. 7513(d). 

5 Accord, e.g., Morgan v. Department of Defense, 63 M.S.P.R. 
58, 61 (1994); Taylor v. Department of Justice, 60 M.S.P.R. 686, 689 
(1994); Wilson v. Department of Justice, 58 M.S.P.R. 96, 99 n.2 
(1993); Harrison v. Department of the Treasury, 42 M.S.P.R. 614, 
622 (1989); Delgado v. Department of the Air Force, 36 M.S.P.R. 
685, 689 (1988); Ballew v. Department of Army, 36 M.S.P.R. 400, 
403 (1988); Rewald v. United States Postal Serv., 34 M.S.P.R. 13, 
16 (1987); Hubbard v. United States Postal Serv., 32 M.S.P.R. 505, 
508 (1987); Boyd v. Veterans Admin., 20 M.S.P.R. 672, 675 n.2 
(1984); Ramseur v. Department of the Navy, 16 M.S.P.R. 104, 106 
(1983). 

23 

for filing untimely MSPB appeal and warranted rever- 
sal of the subsequent penalty); Jones v. Department of 
Air Force, 24 M.S.P.R. 429, 431 (1984) (removal found 
to be unreasonable when a prior disciplinary action on 
which the agency had relied in removing employee 
“was reversed by grievance”). 

3. The MSPB followed the longstanding administra- 
tive practice developed in Douglas, Bolling, and Carr in 
this case. First, the administrative judge found “that 
the agency conscientiously considered the Douglas 
factors,” and properly considered “[respondent]’s re- 
cent, prior disciplinary actions.” Pet. App. 36a. Second, 
the administrative judge concluded that, “[b]ecause 
those prior disciplinary actions were in writing, made a 
matter of record, and the [respondent] had the opportu- 
nity to grieve them, the Board’s review of a prior 
disciplinary action is limited to determining whether 
that action is clearly erroneous.” Id. at 37a (citing 
Bolling, 8 M.S.P.B. at 659-660). Although respondent 
(who was represented by counsel before the MSPB) 
was notified by the prehearing order “that she could 
present argument concerning whether the prior actions 
were clearly erroneous,” she declined to present such 
an argument. Ibid. Nonetheless, the administrative 
judge “reviewed the record of the prior disciplinary 
actions,” and concluded that there was no clear error. 
Ibid. 

The arbitrator’s decision vacating the first discipli- 
nary action—the May 1997 letter of warning for 
insubordination—was issued while respondent’s case 
was still pending before the full MSPB. Respondent, 
however, did not avail herself of her right to supple- 
ment the record and bring that new evidence to the 
Board’s attention. 5 C.F.R. 1201.115(d). Nor, after the 
MSPB had issued its final decision in this case, did 

24 

respondent avail herself of the procedure available 
under Morgan and ask the Board to reopen its decision 
and reconsider it in light of the intervening arbitrator’s 
decision. 5 C.F.R. 1201.117. 

C. The MSPB’s Rule Allowing The Consideration Of Prior 

Disciplinary Actions That Are Subject To Pending 

Grievances Promotes Government Efficiency, While 

Protecting Legitimate Employee Rights 

The MSPB’s longstanding rule permitting federal 
agencies to consider prior disciplinary actions that are 
subject to pending grievances promotes government 
efficiency and the merit principles, while providing 
aggrieved employees with more than adequate process 
to challenge adverse agency actions based on such 
actions. 

1. The MSPB’s rule is “faithful to the central con- 
gressional purposes underlying the enactment of the 
CSRA,” Cornelius v. Nutt, 472 U.S. 648, 662 (1985) 
(internal quotation marks omitted), including the goal of 
“promot[ing] the efficiency of the service,” 5 U.S.C. 
7513(a). As discussed pp. 2, 15-16, supra, Congress 
enacted the CSRA against the backdrop of widespread 
concern that the civil service system had “too often 
become the refuge of the incompetent employee.” 
S. Rep. No. 969, supra, at 3. To address that concern, 
Congress gave “agencies greater ability to remove or 
discipline expeditiously employees who engage in 
misconduct,” and thus promote the efficiency of the 
service. Nutt, 472 U.S. at 662-663. Allowing agencies 
to consider an employee’s prior disciplinary record in 
calibrating the penalty for subsequent misconduct— 
even when such prior actions are subject to pending 
grievances or other proceedings—directly promotes 
that objective. 

25 

An employee’s recent disciplinary record is one of the 
most relevant factors that employers (public or private) 
routinely consider in deciding what discipline is 
appropriate. That record may establish a pattern or 
practice of misconduct on the part of an employee 
necessitating more serious disciplinary measures than 
might be warranted by the latest infraction alone.6 
Conversely, even when a more severe discipline might 
be warranted in response to a single infraction, an 
employer might decide to impose a lesser penalty and 
wait and see if the misconduct ceases. That approach— 
commonly known in labor relations as “progressive 
discipline”—benefits employees by providing them with 
notice of workplace deficiencies and an opportunity to 
correct them, and benefits employers by enabling them 
to target employees who have demonstrated an 
inability or unwillingness to improve their performance. 
Cf. Norfolk Shipbuilding & Drydock Corp. v. Local No. 
684, 671 F.2d 797, 799 (4th Cir. 1982).7 On the other 

6 Severe discipline or removal may be particularly warranted 
when an employee engages in a pattern or practice of sexual har- 
assment or similar wrongdoing. In many cases, no single instance 
of misconduct would justify a lengthy suspension or removal, even 
though the totality of misconduct often warrants such action. Cf. 
Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986); King v. 
Hillen, 21 F.3d 1572, 1580-1581 (Fed. Cir. 1994). 

7 It is commonplace for private-sector employers to consider an 
employee’s prior disciplinary record in responding to continuing 
misconduct and engage in a practice of progressive discipline. See, 

e.g., Pamela Fagan, Do You Investigate Employee Complaints the 
Right Way?, 77 Human Resources Focus 1011 (2000) (noting that 
employers should consider “prior misconduct” and “prior disci- 
pline” in deciding what level of discipline to impose for subsequent 
misconduct); Paul Falcone, A Blueprint for Progressive Discipline 
and Terminations, 77 Human Resources Focus 35 (2000) (advising 
supervisors to keep records of “bad * * * behavior” and not to 

26 

hand, if an agency is told that it cannot rely on the 
employee’s prior record in disciplining her for sub- 
sequent misconduct, then the agency might feel com- 
pelled to impose the most serious sanction available in 
the first instance. 

Consideration of an employee’s prior disciplinary 
record not only makes sense as a matter of basic human 
resources management, but also comports with the text 
of the CSRA. As discussed p. 16, supra, the CSRA 
established merit system principles to govern federal 
personnel management, which include the principle that 
“inadequate [employee] performance should be cor- 
rected,” and that “employees should be separated who 
cannot or will not improve their performance to meet 
required standards.” 5 U.S.C. 2301(b)(6). Permitting 
federal agencies to take graduated or accelerated 

remove disciplinary information from an employee’s file because 
such information is often considered in determining the level of 
discipline for future misconduct). Studies confirm the sensible 
practice that supervisors are “predisposed to harsher disciplinary 
responses toward employees with a record of frequent absence.” 
Patricia A. Simpson & Joseph J. Martocchio, The Influence of 
Work History Factors on Arbitration Outcomes, 50 Indus. & Lab. 
Rel. Rev. 252, 255 (1997) (citing Joseph J. Martocchio & Timothy A. 
Judge, When We Don’t See Eye to Eye: Discrepancies Between 
Supervisors and Subordinates in Absence Disciplinary Decisions, 
21 J. Mgmt. 251-278 (1995)). Likewise, prior disciplinary action is 
often considered in reviewing employment decisions. It is taken 
into account in internal grievance hearings, and has proved to be a 
significant factor in such proceedings. See Simpson & Martocchio, 
supra, at 255 (“[T]he number of times an employee was disciplined 
in the two years prior to the filing of a grievance has been shown to 
be negatively correlated with a favorable resolution of the griev- 
ance on the employee’s behalf at higher steps of the internal 
grievance apparatus.”) (citing Brian S. Klaas, Managerial Decision 
Making About Employee Grievances: The Impact of the Grievant’s 
Work History, 42 Personnel Psych. 52, 52-68 (1989)). 

27 

disciplinary measures against employees on the basis of 
their prior disciplinary actions—even if such actions are 
subject to pending grievances—protects those princi- 
ples. It gives employees a chance to correct deficiencies 
or mistakes and allows employers to separate employ- 
ees “who cannot or will not improve their performance 
to meet required standards.” 

2. At the same time, the MSPB’s rule governing the 
consideration of prior disciplinary actions provides em- 
ployees with ample procedural protections and accords 
with the CSRA’s objective of protecting legitimate 
employee rights. As this Court has recognized, the 
CSRA’s notice and hearing requirements establish 
an “elaborate, comprehensive scheme that encompasses 
substantive provisions forbidding arbitrary action 
by supervisors and procedures—administrative and 
judicial—by which improper action may be redressed.” 
Bush v. Lucas, 462 U.S. 367, 385 (1983). See Lachance 

v. Erickson, 522 U.S. 262, 265-266 (1998) (discussing the 
“carefully delineated [procedural] rights” established 
by the CSRA); see also 5 U.S.C. 7503, 7513 (entitling 
covered employees to notice, opportunity to be heard, 
an attorney, and a written decision prior to any suspen- 
sion, removal, or other serious adverse action); 5 U.S.C. 
7513(d), 7701 (providing for administrative and judicial 
review of major adverse actions).8 

8 The negotiated grievance provision (5 U.S.C. 7121) provides 
covered employees with an additional process to challenge adverse 
actions under the CSRA, even with respect to minor disciplinary 
actions that do not trigger the procedural protections set forth in 
5 U.S.C. 7503 and 7513. Cf. Winston v. United States Postal Serv., 
585 F.2d 198, 210 (7th Cir. 1978) (“[W]e hold that the grievance 
procedures adopted for nonpreference-eligible postal employees by 
[Postal Service] and the Union do not violate the due process 
clause of the Fifth Amendment.”). 

28 

The Bolling rule governing the consideration of prior 
disciplinary actions ensures that the employee does not 
lose the protections that accompany adverse action by 
agency reliance on prior minor discipline unaccompa- 
nied by such protections. As discussed above, the 
Bolling framework allows collateral challenges to prior 
discipline. That fully and fairly protects employees’ 
interests. Furthermore, if a prior disciplinary action is 
set aside as the result of a successful grievance after an 
initial decision has been issued by the MSPB, the 
MSPB’s rules permit the employee to petition the full 
Board to review the initial decision in light of the new 
evidence. 5 C.F.R. 1201.115(d)(1); cf. Morgan, 63 
M.S.P.R. at 62 n.3. And the MSPB may reopen any 
final decision—“at any time”—in the event that the em- 
ployee’s prior disciplinary record has been revised as 
the result of a successful grievance. 5 C.F.R. 1201.118. 
The ability to reopen MSPB decisions might well prove 
sufficient standing alone to protect employees, but 
when coupled with the Bolling rule it provides employ- 
ees with more than adequate procedural safeguards. 

3. The MSPB’s longstanding rule concerning disci- 
plinary actions that are subject to pending grievances 
embodies the Board’s judgment that allowing federal 
agencies to consider such prior actions in disciplining or 
removing employees promotes the objectives of the 
CSRA and is otherwise in accordance with law. Cf. 
Atchison, T. & S.F. R.R. v. Wichita Bd. of Trade, 412 
U.S. 800, 807 (1973) (plurality opinion) (“A settled 
course of behavior embodies the agency’s informed 
judgment that, by pursuing that course, it will carry out 
the policies committed to it by Congress.”). OPM, the 
agency charged with overseeing federal personnel man- 
agement matters, has not challenged MSPB’s decisions 
implementing that rule. See 5 U.S.C. 7703(d) (OPM 

29 

may seek judicial review of any MSPB decision that, in 
OPM’s “discretion,” erroneously “interpret[s] a civil 
service law, rule, or regulation affecting personnel man- 
agement”). Respondent accordingly bears an ex- 
tremely heavy burden in establishing that a court 
should substitute its judgment for that of the agency. 

D. The Court Of Appeals Erred In Holding That The 

MSPB Abused Its Discretion By Evaluating Respon- 
dent’s Removal In Accordance With The Longstanding 

Administrative Rule 

With scarcely any discussion of the foregoing con- 
siderations, and without even requesting oral argu- 
ment, the Federal Circuit in this case overturned the 
MSPB’s longstanding treatment of prior disciplinary 
actions that are subject to pending grievances, and 
effectively put an end to a time-honored federal per- 
sonnel management practice. As we explain below, the 
Federal Circuit’s ruling is without precedent or 
principle and should be set aside. 

1. To begin with, the Federal Circuit fundamentally 
misconceived its limited scope of review under the 
CSRA. The court of appeals may only substitute its 
judgment for that of the MSPB when the agency’s 
position is “arbitrary, capricious, an abuse of discretion, 
or otherwise not in accordance with law.” 5 U.S.C. 
7703(c)(1).9 As this Court has recognized in the APA 
context, “[t]he scope of review under the ‘arbitrary and 

9 The Federal Circuit may also set aside a MSPB decision if it is 
“obtained without procedures required by law, rule, or regulation 
having been followed,” or “unsupported by substantial evidence.” 
5 U.S.C. 7703(c). But neither of those provisos is implicated by the 
question presented in this case and the Federal Circuit specifically 
grounded its ruling on its conclusion that the MSPB had “abused 
its discretion.” Pet. App. 7a. 

30 

capricious’ standard is narrow and a court is not to 
substitute its judgment for that of the agency.” State 
Farm Mut. Auto. Ins. Co., 463 U.S. at 43. Accord FCC 

v. National Citizens Comm. for Broad., 436 U.S. 775, 
803 (1978). With virtually no explanation for doing so, 
the court of appeals in this case substituted its judg- 
ment for that of the MSPB and numerous federal 
employers with respect to whether agencies may 
consider prior disciplinary actions that are subject to 
pending grievances, and overturned nearly two- 
decades worth of administrative precedent. That was 
error. 

The Federal Circuit provided no basis to dismiss the 
longstanding administrative practice as arbitrary and 
capricious. The court identified no constitutional 
provision, statute, or regulation that calls into question 
the Bolling regime or the routine practice of federal 
employers to consider an employee’s prior disciplinary 
record without regard to whether grievances are 
pending. Instead, the Federal Circuit relied on a 
flawed syllogism. First, the court stated that there can 
“be no doubt that a penalty determination cannot be 
supported by an earlier prior disciplinary action that is 
subsequently reversed.” Pet. App. 6a. Second, the 
court noted that, if an agency relies on prior discipli- 
nary actions as to which a grievance is pending and the 
grievance is sustained, “the foundation of ” the em- 
ployer’s and the reviewing MSPB’s “analysis would be 
compromised.” Id. at 7a. From those premises, the 
court concluded: “Accordingly, we hold that, as a 
matter of law, consideration may not be given to prior 
disciplinary actions that are the subject of ongoing 
proceedings challenging their merits. To conclude 
otherwise would risk harming the legitimacy of the 
reasonable penalty analysis, by allowing the use of 

31 

unreliable evidence (the ongoing prior disciplinary 
actions) to support an agency action.” Ibid. 

But the Federal Circuit’s conclusion does not follow 
from its premises. The fact that reliance on prior 
disciplinary actions for which grievances are pending 
creates a risk that the outcome of the grievances will 
undermine the decisions of the federal agencies and the 
MSPB does not justify requiring agencies to ignore 
prior actions entirely during the often lengthy period it 
takes to process grievances, especially when a mecha- 
nism exists to address that risk. The Bolling frame- 
work greatly minimizes the risk of “compromised” 
decisions by allowing for a collateral attack on prior 
decisions. Moreover, the ability to reopen MSPB deci- 
sions when the outcome of a grievance undermines an 
MSPB decision eliminates any unfairness when the 
possibility that concerned the Federal Circuit in fact 
comes to pass. Those procedural rules eliminate the 
potential unfairness that concerned the court below, 
without precluding the MSPB and every federal 
employer from reviewing highly relevant evidence. 

In the end, the Federal Circuit appeared to prefer a 
disciplinary scheme that forbids reference to prior 
discipline subject to grievance, in order to eliminate any 
possibility that the outcome of a grievance would cast 
doubt on later discipline. Federal employers and the 
MSPB traditionally have preferred a different scheme, 
one in which federal agencies—like private-sector 
employers—may consider prior discipline subject to 
grievance, but in which employees are afforded 
substantial procedural protections to prevent prejudice 
in the event that a prior action is set aside as the result 
of a grievance or other proceeding. In our view, MSPB 
and federal agencies have adopted a far superior policy, 
but that was not the question before the Federal 

32 

Circuit, and it is not the question before this Court. 
Having failed to identify anything arbitrary and capri- 
cious about the longstanding administrative practice, 
the Federal Circuit simply had no basis to invalidate 
it. 

10 

2. Certainly nothing in the CSRA precludes an 
agency from considering prior disciplinary actions that 
are subject to pending grievances in disciplining or 
removing an employee. To the contrary, requiring 
agencies to disregard prior disciplinary actions that 
remain subject to “proceedings challenging their 
merits” (Pet. App. 7a) would frustrate the statutory 
goals of promoting efficiency, allowing employees to 
correct mistakes, and separating employees who cannot 
or do not meet required standards. 

The Federal Circuit itself acknowledged that “[t]here 
is no doubt that prior disciplinary actions are an 
important factor when considering whether a particular 
penalty is reasonable under given circumstances.” Pet. 
App. 6a. Nonetheless, the Federal Circuit’s rule pre- 
cludes agencies from relying on highly relevant 
evidence of an employee’s efficiency and ties the hands 
of federal agencies in dealing with perhaps the most 
troublesome class of employees—recidivists. A recidi- 
vist employee (or a union) could prevent an employer 

10 The Federal Circuit’s decision had the effect of invalidating 
not only the longstanding MSPB practice of reviewing disciplinary 
actions based on prior actions subject to pending grievances, but 
also the practice of numerous federal employers of looking to an 
employee’s prior record without regard to whether prior discipline 
is subject to a grievance. Accordingly, the Federal Circuit wiped 
out the MSPB’s administrative regime and the substantive em- 
ployment polices of numerous federal agencies in one fell swoop, 
with scarcely any deference at all to the views of MSPB or the 
employing agencies. 

33 

from considering the employee’s recent misconduct 
simply by grieving prior disciplinary actions. Thus, for 
example, if pending grievances precluded an agency 
from taking account of an employee’s disciplinary 
record of workplace harassment, then the agency could 
not sanction a second, third, or tenth incident more 
severely than the first. Even if part of a pattern of 
continuing misconduct, the most recent charge would 
have to be considered in a vacuum as long as the prior 
acts remained subject to pending grievances. Govern- 
ment efficiency and effectiveness—not to mention the 
rights of others in the workplace—would suffer enor- 
mously under such a regime. 

It is no answer to argue that employers can still rely 
on the aspects of a prior disciplinary record not subject 
to pending grievances. If agencies cannot consider 
prior disciplinary actions while a grievance is pending, 
they may not be able to consider such prior actions at 
all. Federal personnel regulations and collective 
bargaining agreements commonly prevent agencies 
from considering prior disciplinary actions that are 
more than two or three years old. The Postal Service’s 
collective bargaining agreement provides that “records 
of a disciplinary action against an employee shall not be 
considered in any subsequent disciplinary action if 
there has been no disciplinary action initiated against 
the employee for a period of two years.” Agreement 
Between United States Postal Service and National 
Ass’n of Letter Carriers, AFL-CIO (1994-1998) art. 
16:10. Similarly, Department of Defense Administra- 
tive Instruction No. 8 (Aug. 17, 1981) provides for con- 
sideration of past suspensions only if they occurred 
within the last three years, and of past reprimands and 
admonishments only if they occurred within the last 
two years. If recent disciplinary actions are excluded 

34 

because of pending grievance procedures, and less 
recent ones are excluded because they are considered 
stale, the basis for progressive discipline will be elimi- 
nated. Moreover, even if the Federal Circuit’s rule 
would allow some window in which past disciplinary 
actions could be considered, the rule clearly puts the 
most recent, and therefore most relevant, actions off 
limits as long as a grievance is pending. 

Those problems are particularly acute because the 
inherent informality of grievance proceedings invites 
delay. Grievance proceedings initiated under the CSRA 
—which often include arbitration—are not immune 
from such delay. Cf. Clark v. Bear Stearns & Co., 966 
F.2d 1318, 1319 (9th Cir. 1992) (“Arbitration provides a 
speedy and efficient method for the resolution of 
disputes. At least that is the theory. In practice, a 
dispute submitted for arbitration often drones on.”) 
(footnote omitted). In this case, for example, the 
grievance challenging respondent’s May 1997 infraction 
was not final until July 1999—two years after the 
infraction. Pet. App. 5a. Respondent’s grievances 
challenging the June 1997 and August 1997 suspensions 
are still pending after more than three years. Respon- 
dent herself acknowledges that “the grievance process 
no doubt sometimes experiences delay.” Br. in Opp. 17. 
The Federal Circuit rule will only exacerbate matters 
by giving employees a clear incentive to delay pro- 
ceedings. Indeed, as far as its effect on future discipline 
is concerned, a pending grievance is as effective as a 
successful grievance. 

11 As a result, by the time the 

11 Of course, we recognize that the grievance procedure plays a 
salutary role in allowing employers and employees to resolve 
legitimate disputes. In pursuing good faith disputes, employees 
have little incentive to delay and every incentive to obtain a just 

35 

grievance is resolved, the prior action may be stale and 
in some cases no longer subject to consideration under 
agency rules or agreements. 

In the wake of its decision in this case, the Federal 
Circuit itself has recognized the practical effect of “the 
rule announced in Gregory.” Blank v. Department of 
the Army, No. 00-3255, 2001 WL 392069, at *5 (Apr. 19, 
2001). Relying on the court of appeals’ decision in this 
case, the aggrieved employee in Blank argued that the 
MSPB improperly considered his prior disciplinary 
record in affirming the agency’s decision of removal 
because prior disciplinary actions against him remained 
subject to pending EEOC proceedings. The Federal 
Circuit disagreed. As the court explained, “EEOC 
appeals often take years to complete.” Ibid. Thus, “[i]f 
an agency is unable to consider prior disciplinary 
actions pending before the EEOC, the agency would be 
effectively prohibited from timely implementing pro- 
gressive disciplinary measures.” Ibid. We agree. 
However, the same problematic results follow if an 
agency is unable to consider prior actions that are 
subject to pending grievances, which—as this case itself 
illustrates—also can take years to complete. 

12 

result expeditiously. The problem with the Federal Circuit rule is 
that it creates an incentive for foot dragging in precisely the cases 
in which the grievance is filed to insulate a disciplinary action from 
use in subsequent disciplinary actions. 

12 In Blank, the Federal Circuit purported to distinguish EEOC 
proceedings from grievance proceedings on the ground that “an 
EEOC complaint is not an attack on the validity of the disciplinary 
action itself.” 2001 WL 392069, at *5. But the CSRA explicitly 
provides that a disciplinary action must be set aside if it is 
based on a prohibited practice such as discrimination. 5 U.S.C. 
7701(c)(2)(B). And, indeed, respondent in this case specifically 
challenged her removal on the ground that it was motivated by 

36 

The incentives created by the Federal Circuit’s rule 
also would undermine the efficiency of the system 
established by the CSRA for reviewing agency action. 
Immunizing employees from cumulative discipline 
based on prior disciplinary actions for as long as such 
actions remain subject to challenge would encourage 
recidivist employees (or their unions) to file grievances 
against virtually any disciplinary action, even minor 
ones, and to prolong such proceedings for as long as 
possible (or at least until the reckoning period in the 
agency’s rules or a collective bargaining agreement has 
expired), in order to bar an agency from relying on 
prior misconduct in dealing with subsequent miscon- 
duct. The added burdens imposed on the system by 
such proceedings could interfere with the legitimate 
rights of employees who have been wrongfully ag- 
grieved by major adverse agency action by creating a 
backlog of cases that would hamper their ability to 
obtain redress. 

More fundamentally, the Federal Circuit’s rule flouts 
the presumption of regularity traditionally afforded 
agency action. The time-honored presumption is that 
administrative officials perform their duties properly 
and in good faith. See United States v. Chemical 
Found., Inc., 272 U.S. 1, 14-15 (1926) (“[I]n the absence 
of clear evidence to the contrary, courts presume that 
[public officers] have properly discharged their official 
duties.”); United States v. Armstrong, 517 U.S. 456, 464 
(1996); accord United States v. Mezzanatto, 513 U.S. 
196, 210 (1995); Hynes v. Grimes Packing Co., 337 U.S. 
86, 101 (1949); see also FTC v. Invention Submission 

illegal discrimination. Pet. App. 30a-32a. Moreover, employees 
can and do present allegations of discrimination in grievance pro- 
ceedings challenging adverse actions. See 5 U.S.C. 7121(d). 

37 

Corp., 965 F.2d 1086, 1091 (D.C. Cir. 1992) (“As we have 
so often said, ‘agencies are entitled to a presumption 
of administrative regularity and good faith.’ ”), cert. 
denied, 507 U.S. 910 (1993); Hubbard v. United States 
Postal Serv., 32 M.S.P.R. 505, 508 (1987) (agency action 
enjoys “the presumption of honesty and integrity which 
accompanies administrative adjudicators”). 

There is no reason to treat differently an agency’s 
decision to take a particular disciplinary action against 
an employee, especially when that action is preceded by 
notice and an opportunity to be heard. Cf. Miguel v. 
Department of the Army, 727 F.2d 1081, 1083 (Fed. Cir. 
1984) (“It is a well-established rule of civil service law 
that the penalty for employee misconduct is left to the 
sound discretion of the agency.”) (citing cases). Yet the 
Federal Circuit’s rule effectively reverses the presump- 
tion of regularity in the case of any prior disciplinary 
action that is subject to a pending grievance, and 
requires the MSPB and federal agencies to presume 
that such an action is “unreliable” (Pet. App. 7a) until 
the grievance is shown to have failed. 

3. Nor is the Federal Circuit’s rule compelled by 
principles of due process. See Gilbert v. Homar, 520 
U.S. 924, 928-929 (1997) (discussing due process re- 
quirements applicable to suspension and removal of 
public employees); Cleveland Bd. of Educ. v. Louder- 
mill, 470 U.S. 532, 545-546 (1985). The elaborate proce- 
dures established by the CSRA and the MSPB— 
including the Bolling rule and reopening procedure— 
provide employees more than sufficient process to 
satisfy any constitutional or statutory command. As 
explained pp. 2-4, 20-23, supra, employees enjoy several 
different layers of procedural protections that enable 
them to challenge adverse agency actions under the 
CSRA. Standing alone, the Bolling framework or 

38 

reopening mechanism might satisfy any lack-of- 
sufficient-process objection, but when considered 
together, they plainly afford aggrieved employees more 
than adequate process to challenge adverse actions. 

Respondent, moreover, is hardly in a position to 
argue that she is entitled to more process, when she has 
not even fully availed herself of the procedures that are 
in place. As discussed above, respondent did not bring 
the arbitrator’s decision to the attention of the full 
Board while her appeal was still pending before it, 
5 C.F.R. 1201.115(d)(1), and she has not asked the 
Board to reopen her case, 5 C.F.R. 1201.118. 

4. Because the Federal Circuit erred in holding that 
“consideration may not be given to prior disciplinary 
actions that are the subject of ongoing proceedings 
challenging their merits,” Pet. App. 7a, the judgment of 
the court of appeals should be reversed and the case 
remanded for further proceedings. The Federal Circuit 
predicated its decision on the conclusion that the Board 
(and the Postal Service) improperly relied upon respon- 
dent’s prior disciplinary actions—including both the 
action set aside by the arbitrator and the actions that 
remain subject to pending grievances—in determining 
the reasonableness of respondent’s removal, because 
those actions “were the subject of ongoing grievance 
proceedings.” Ibid.; see id. at 1a-2a. The Federal 
Circuit erroneously refused to allow agencies to look to 
any prior disciplinary action subject to a grievance, but 
a remand remains necessary to permit the court to 
consider the effect of the arbitrator’s invalidation of one 
prior action. 

In its petition for rehearing in the court of appeals, 
the Postal Service suggested that the court should 
“remand this action to the MSPB to determine the issue 
of the appropriate penalty, with instructions that the 

39 

board may not consider the one prior disciplinary action 
that was overturned by the arbitrator.” Gov’t C.A. Pet. 
for Reh’g 20. Alternatively, the court of appeals could 
also determine that such a remand is unnecessary or 
inappropriate, and that respondent’s proper remedy 
lies in directly asking the MSPB to reopen the decision 
in her case. Respondent never placed the arbitrator’s 
decision overturning the first disciplinary action into 
the MSPB record, even though that decision was issued 
months before the MSPB issued its final decision. The 
Federal Circuit took “judicial notice” of the arbitrator’s 
decision, Pet. App. 5a, but the CSRA expressly limits 
the Federal Circuit’s review of MSPB decisions to “the 
record.” 5 U.S.C. 7703(c). Cf. Fisher v. INS, 79 F.3d 
955, 963 (9th Cir. 1996) (en banc) (where petitioner 
could have put evidence into administrative record but 
did not, court of appeals could not take judicial notice of 
evidence because its review was limited by statute to 
the administrative record). Accordingly, the proper 
course may be for the Federal Circuit to resolve this 
appeal against respondent and for respondent to file a 
motion to reopen directly with the MSPB. 

13 In either 

13 Moreover, even considering the arbitrator’s decision expung- 
ing the first disciplinary action, respondent’s removal may still be 
supported by substantial evidence. 5 U.S.C. 7703(c)(3). As dis- 
cussed, in upholding the Postal Service’s decision to remove re- 
spondent, the MSPB did not place any particular reliance on the 
May 1997 letter of warning expunged by the arbitrator. Instead, 
the Board emphasized that respondent’s prior disciplinary record 
“involved unauthorized overtime,” a reference to the misconduct 
resulting in respondent’s August 1997 suspension. Pet. App. 37a. 
See id. at 37a-38a (“At first blush, a removal for one instance of 
failure to perform duties satisfactorily may appear unreasonable. 
However, considering the [respondent’s] prior disciplinary ac- 
tions also involved unauthorized overtime, that one instance takes 
on additional significance and tends to reveal a pattern of conduct 

40 

event, we believe that the propriety of a remand to the 
MSPB may be left for the Federal Circuit on remand. 

* * * * * 

For nearly two decades, the MSPB has recognized 
that federal agencies may consider an employee’s dis- 
ciplinary record in calibrating the discipline for sub- 
sequent misconduct without regard to whether prior 
discipline remains subject to pending grievances. That 
common sense practice is deeply entrenched in the 
Board’s decisions and advances the CSRA’s objectives 
of promoting government efficiency, providing em- 
ployees the opportunity to correct mistakes, and 
enabling employers to separate employees who cannot 
or do not improve. At the same time, the MSPB has 
afforded employees significant procedural protections 
in challenging adverse agency action that is based on 
prior disciplinary actions. The Federal Circuit in this 
case improperly substituted its judgment for the 
MSPB’s and overturned that longstanding rule. The 
Federal Circuit’s ill-considered decision effectively 
prevents federal employers from using the most 
relevant aspects of an employee’s disciplinary record in 
sanctioning misconduct. It amounts to an unwarranted 
incursion into the sensitive area of federal employer- 
employee relations, raises the same sort of concerns 

by the appellant to disregard the agency’s and her supervisor’s 
expectations of her performance and conduct.”) (emphasis added). 
Jones v. Department of Air Force, is not to the contrary. There, 
the MSPB held that the appellant’s removal was unreasonable, 
because a prior disciplinary action on which the agency had relied 
“was reversed by grievance.” 24 M.S.P.R. at 431. But once that 
prior action was “effectively cancelled” by the successful 
grievance, there was little, if anything, in the appellant’s prior 
disciplinary record in Jones to justify the removal. Ibid. 

41 

that led to the enactment of the CSRA, and should be 
reversed by this Court. 

CONCLUSION 

The judgment of the court of appeals should be 
reversed. 

Respectfully submitted. 

MARY ANNE GIBBONS 

General Counsel 

LORI J. DYM 
STEPHAN J. BOARDMAN 

Attorneys 
United States Postal Service 
BARBARA D. UNDERWOOD 

Acting Solicitor General 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

PAUL D. CLEMENT 

Deputy Solicitor General 

GREGORY G. GARRE 

Assistant to the Solicitor 

General 

DAVID M. COHEN 
TODD M. HUGHES 
DAVID B. STINSON 

Attorneys 

APRIL 2001