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 

REPLY BRIEF FOR THE PETITIONER 

THEODORE B. OLSON 
Solicitor General 

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

MARY ANNE GIBBONS 
General Counsel 
United States Postal Service 
Washington, D.C. 20260 

TABLE OF CONTENTS 

Page 

I. The Federal Circuit did not adopt respondent’s 
narrow rule ............................................................................. 
2 

II. Even if the Federal Circuit adopted respondent’s 
narrow rule, its decision should be reversed .................... 
5 

III. The due process clause does not demand rejection 
of the settled administrative practice ............................... 
11 

IV. The question of the appropriate remedy is better 
left to the Federal Circuit on remand ............................... 
15 

TABLE OF AUTHORITIES 

Cases: 

Blank v. Department of the Army, 247 F.3d 1225 
(Fed. Cir. 2001) ...................................................................... 

3 
Bolling v. Department of the Air Force, 8 M.S.P.B. 658 
(1981) ........................................................................................ 5 

Bragdon v. Abbott, 524 U.S. 624 (1998) ............................. 

4 

Carr v. Department of the Air Force, 9 M.S.P.B. 714 
(1982) ........................................................................................ 5-6 

Citizens to Preserve Overton Park, Inc. v. Volpe, 
401 U.S. 402 (1971) ................................................................ 

3 

Cockrell v. Department of the Air Force, 58 M.S.P.R. 
211 (1993) ................................................................................. 
9 

Cornelius v. Nutt, 472 U.S. 648 (1985) ............................... 
9 

Delgado v. Department of the Air Force, 36 M.S.P.R. 
685 (1988) ................................................................................. 
6 

Florida Power & Light Co. v. Lorion, 470 U.S. 729 
(1985) ........................................................................................ 3 

Freeman v. Department of Transp., 20 M.S.P.R. 290 
(1984) ........................................................................................ 6 

Los Angeles Police Dep’t v. United Reporting Publ’n 

Corp., 528 U.S. 32 (1999) ..................................................... 
4 

Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 
367 (1996) ................................................................................. 4 

(I) 

II 

Cases—Continued: Page 

Morgan v. Department of Def., 63 M.S.P.R. 58 
(1994) ........................................................................................ 6 

Shaw v. Murphy, 121 S. Ct. 1475 (2001) ............................ 

16 

Taylor v. Department of Justice, 60 M.S.P.R. 686 
(1994) ........................................................................................ 6 

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

6, 8 

Westbrook v. Department of the Air Force, 
77 M.S.P.R. 149 (1997) .......................................................... 
9 

Statutes: 

Civil Service Reform Act of 1978, 5 U.S.C. 1101 et seq. .... 

2 

5 U.S.C. 7503(b) ..................................................................... 
12 

5 U.S.C. 7513(b) ..................................................................... 
12 

5 U.S.C. 7701 .......................................................................... 
12 

5 U.S.C. 7701(c)(1)(B) ........................................................... 
12 

5 U.S.C. 7701(i)(4) .................................................................. 
6 

5 U.S.C. 7703(c)(1) ................................................................. 
2 

Postal Reorganization Act, 39 U.S.C. 101 et seq. ................ 
10 

39 U.S.C. 1005(a)(1)(A) ......................................................... 
10 

39 U.S.C. 1005(a)(2) ............................................................... 
10 

39 U.S.C. 1005(a)(4)(A) ......................................................... 
10 

39 U.S.C. 1208 ........................................................................ 
8 

39 U.S.C. 1209(a) .................................................................... 
8 

Miscellaneous: 

Arbitration Between USPS & NALC, In re: 

Case No. H7N-5P-C 1132 (Nat’l Arb. Panel Mar. 26, 
1990) ..................................................................................... 15 

Case No. H94N-4H-D 96047665 (Regular Reg’l Arb. 

So. Panel Jan. 19, 1997) .................................................... 
7 

Case No. H94N-4H-D 98051824 (Regular Reg’l Arb. 

Panel Oct. 2, 1999) ............................................................. 

7 

Case No. H94N-4H-D 97053759 (So. Regular Discipline 

Arb. Panel May 10, 2001) ................................................ 
7 

MSPB, Fiscal Year 2000 Performance Report 
(Mar. 31, 2001) ....................................................................... 7 

III 

Miscellaneous—Continued: Page 

Report of the USPS Comm’n on a Safe & Secure 

Workplace (Aug. 2000) ......................................................... 
6-7 

S. Rep. No. 969, 95th Cong., 2d Sess. (1978) ........................ 6, 15 

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 

REPLY BRIEF FOR THE PETITIONER 

The Federal Circuit held that in imposing discipline 
against federal workers, “as a matter of law, consideration 
may not be given to prior disciplinary actions that are the 
subject of ongoing proceedings challenging their merits.” 
Pet. App. 7a. In adopting that rule, the Federal Circuit 
improperly substituted its judgment for that of the MSPB 
and countless federal employers and overturned the 
longstanding administrative practice allowing consideration 
of prior disciplinary actions subject to pending grievances. 

Rather than defend the Federal Circuit’s decision on its 
terms, respondent attempts to recast that decision as estab- 
lishing a “narrow rule” that affects “only the MSPB” (Resp. 
Br. 20), and leaves federal employers free to consider prior 
disciplinary actions in calibrating progressive discipline. The 
Federal Circuit’s decision cannot bear that strained con- 
struction. The decision itself, the Federal Circuit’s 

(1) 

2 

subsequent treatment of the decision, and basic principles of 
administrative law all demonstrate that the Federal Circuit’s 
ruling prevents the MSPB and federal employers alike from 
considering prior discipline subject to pending grievances. 
Moreover, even if the Federal Circuit had adopted respon- 
dent’s “narrow rule,” its decision still would conflict with 
longstanding administrative practice and the clear intent of 
Congress in enacting the Civil Service Reform Act of 1978 
(CSRA), 5 U.S.C. 1101 et seq. 

The bottom line remains that the Federal Circuit erred in 
vitiating a settled administrative practice that is not re- 
motely “arbitrary, capricious, an abuse of discretion, or 
otherwise not in accordance with law.” 5 U.S.C. 7703(c)(1). 
This Court should reverse the judgment below and remand 
to the Federal Circuit for consideration of the appropriate 
relief. 

I. The Federal Circuit Did Not Adopt Respondent’s 
Narrow Rule 

Respondent’s effort to prevail in this Court depends 
entirely on retooling the decision below. Respondent 
repeatedly asserts that the Federal Circuit’s holding applies 
to “only the MSPB,” Resp. Br. 20; see id. at 1, 15, 20, 23, 31, 
and insists that the court’s holding does not preclude 
“federal employers” from relying on disciplinary actions 
subject to pending grievances in dealing with recidivist 
employees. Id. at 19. That argument is untenable. 

First, and most fundamentally, respondent’s narrow rule 
finds no support in what the Federal Circuit in fact said. 
Nothing in the Federal Circuit’s categorical holding for- 
bidding consideration of prior disciplinary actions subject to 
pending grievances purports to limit that holding to “the 
MSPB.” To the contrary, the relief ordered by the Federal 
Circuit indicates that its holding governs federal employers 
as well as the MSPB. In remanding the case to the MSPB, 

3 

the Federal Circuit gave the Board the option to return the 
case “to the Postal Service to select a penalty in light of the 
precise status of Ms. Gregory’s prior disciplinary record.” 
Pet. App. 7a-8a (emphasis added). 

Subsequent Federal Circuit case law confirms that the 
decision below did not adopt respondent’s narrow rule. In 
Blank v. Department of the Army, 247 F.3d 1225, 1230 
(2001), the Federal Circuit declined to extend the “rule 
announced in Gregory” to prior disciplinary actions subject 
to pending EEOC proceedings. In refusing to extend 
Gregory, the Blank court explained: “If an agency is unable 
to consider prior disciplinary actions pending before the 
EEOC, the agency would be effectively prohibited from 
timely implementing progressive disciplinary measures.” 
Ibid. (emphasis added). If the “rule announced in Gregory” 
governed “only the MSPB” (Resp. Br. 20), its application to 
prior discipline under review in the EEOC would not limit 
an agency’s ability to implement progressive discipline. 

Moreover, respondent’s narrow rule runs counter to 
fundamental tenets of administrative law. It is well-settled 
that review of an agency action generally must be based on 
the record before the agency at the time of its decision. See, 

e.g., Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743- 
744 (1985); Citizens to Preserve Overton Park, Inc. v. Volpe, 
401 U.S. 402 (1971). Under respondent’s approach, however, 
federal employers could consider prior discipline subject to a 
pending grievance in deciding what discipline to impose, 
while the MSPB could not. To avoid that absurd result— 
that the Board must base its review on a narrower record 
than was before the primary decisionmaker—respondent 
suggests that the Board may consider the full record before 
the agency once pending grievances have run their course. 
But a reviewing tribunal generally need not wait for the 
administrative record to “ripen” based on events taking 
place long after the agency has made its decision, and the 

4 

Federal Circuit’s decision cannot be fairly read to require 
that counterintuitive result. 

Respondent’s argument that the Federal Circuit adopted 
a narrow rule is further undercut by her arguments before 
the Federal Circuit and the MSPB. In the Federal Circuit, 
respondent argued that her rights were “violated when the 
government relied upon two unarbitrated cases as a basis 
for discharge.” Pet. C.A. Br. 4 (emphasis added). Then, 
rather than asking the Federal Circuit to vacate the MSPB’s 
decision and remand with instructions that her MSPB appeal 
be “continued to allow the grievance process concerning the 
earlier action to run its course” (Resp. Br. 23), respondent 
requested reversal of the MSPB’s decision and that she “be 
returned to duty.” Pet. C.A. Br. 6. Likewise, before the 
MSPB, respondent never asked the Board to stay her appeal 
until the pending grievances were resolved, and did not even 
challenge her prior discipline as erroneous. Pet. App. 37a. 
“While it is true that a respondent may defend a judgment 
on alternative grounds, [this Court] generally do[es] not 
address arguments that were not the basis for the decision 
below.” Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 
367, 379 n.5 (1996); see Los Angeles Police Dep’t v. United 
Reporting Publ’n Corp., 528 U.S. 32, 41 (1999); Bragdon v. 
Abbott, 524 U.S. 624, 638 (1998). Here, the Federal Circuit 
not only did not adopt respondent’s narrow rule, but 
respondent asked for relief that is inconsistent with that rule 
and consistent with a “broad rule” governing both the MSPB 
and federal employers.1 

1 Respondent’s revisionist reading of the Federal Circuit’s ruling is 
also contradicted by her own amici. For example, the American Federa- 
tion of Government Employees, AFL-CIO (AFGE) “submits that the 
Federal Circuit’s decision properly requires agencies to prove * * * the 
alleged misconduct in prior disciplinary actions that are pending before 
considering those actions in imposing a penalty in a subsequent adverse 
action.” AFGE Br. 5 (emphasis added). 

5 

II. Even If The Federal Circuit Adopted Respon- 
dent’s Narrow Rule, Its Decision Should Be 
Reversed 

a. The narrow rule hypothesized by respondent is at 
odds with MSPB practice. For decades, the MSPB has held 
that agencies may rely on prior disciplinary actions that are 
subject to pending grievances in determining the penalty for 
repeated misconduct, but also has permitted employees col- 
laterally to attack such actions before the MSPB when 
challenging progressive disciplinary measures. See U.S. Br. 
21-23 & n.5; Bolling v. Department of the Air Force, 8 
M.S.P.B. 658 (1981). Respondent allocates (at 31-32) scarcely 
two pages of her brief to discussing that deeply entrenched 
practice. There, respondent suggests (at 31) that the 
MSPB’s case law does not address “whether the MSPB itself 
may rely * * * on prior disciplinary actions that are still 
the subject of pending grievance proceedings.” Further, 
respondent hypothesizes that “[i]f the MSPB had confronted 
the precise issue here presented, it likely would have agreed 
with the Federal Circuit.” Ibid. 

But the Board’s decision in this case establishes that the 
MSPB reviews the challenged disciplinary action under the 
familiar Bolling framework, see Pet. App. 36a-37a, rather 
than placing the appeal on hold until pending grievances 
“run [their] course” (Resp. Br. 23). Moreover, as respon- 
dent’s own amici acknowledge (see Br. for Nat’l Treasury 
Employees Union (NTEU) 10), this case is by no means the 
first in which the MSPB has confronted this issue and 
applied Bolling in reviewing an employee’s challenge to a 
removal based on a prior action that was “the subject of 
pending grievance or arbitration procedures” while the 
matter was before the MSPB. Carr v. Department of the Air 

6 

Force, 9 M.S.P.B. 714 (1982).2 The Federal Circuit lacked a 
sufficient basis to override that administrative practice, 
whether it did so broadly or by adopting respondent’s 
narrow rule. 

b. Respondent’s narrow rule also contravenes the CSRA. 
As noted, respondent’s rule would force the MSPB to blind 
itself to key evidence relied upon by the agency in the 
decision under review. To avoid that absurd result, respon- 
dent suggests that the MSPB must “continue[]” appeals “to 
allow the grievance process concerning the earlier action to 
run its course.” Resp. Br. 23. As this Court has observed, 
however, Congress designed the CSRA to streamline the 
administrative appeals process. See United States v. Fausto, 
484 U.S. 439, 445 (1998) (citing S. Rep. No. 969, 95th Cong., 
2d Sess. 9 (1978)). The Act accordingly provides that “[i]t 
shall be the duty of the Board * * * to expedite [its pro- 
ceedings] to the extent practicable.” 5 U.S.C. 7701(i)(4). 
Respondent’s continuance procedure would require the 
MSPB to do just the opposite. 

Respondent suggests (at 29) that “a later-initiated MSPB 
proceeding will rarely leap-frog an earlier-initiated griev- 
ance proceeding,” because the “collective bargaining agree- 
ment here * * * calls for an arbitration decision in well 
under one year.” That is wishful thinking. As this case 
illustrates, the grievance-arbitration process can and does 
take longer than a year to navigate. Indeed, as of April 2000, 
more than 126,000 grievances against the Postal Service (one 
of the Nation’s largest single employers, with more than 
700,000 employees) were awaiting arbitration by some 300 
arbitrators. Report of the USPS Comm’n on a Safe & 

2 See also, e.g., Morgan v. Department of Def., 63 M.S.P.R. 58 (1994); 
Taylor v. Department of Justice, 60 M.S.P.R. 686 (1994); Delgado v. 
Department of the Air Force, 36 M.S.P.R. 685 (1988); Freeman v. 
Department of Transp., 20 M.S.P.R. 290 (1984). 

7 

Secure Workplace 51 (Aug. 2000). More than 20,000 of those 
grievances were filed by the National Association of Letter 
Carriers, AFL-CIO (NALC) alone. Ibid.3 

By contrast, MSPB’s most recent performance report 
indicates that on average it took 89 days from the filing of an 
appeal to the initial decision by an administrative law judge, 
and 176 days for the full Board to review that decision, if 
requested by the employee. MSPB, Fiscal Year 2000 Per- 
formance Report 15-16 (Mar. 31, 2001). That report portrays 
a much different picture of MSPB efficiency than that 
painted (at 29) by respondent. Moreover, the MSPB’s rela- 
tive efficiency, compared with the delays that may ensue in 
the arbitration context, means that respondent’s proposed 
“wait and see” role for the MSPB could substantially delay 
MSPB appeals and, thus, frustrate Congress’s intent that 
those appeals be heard as expeditiously as practicable. 

Neither federal employees nor employers would benefit 
from a regime in which the validity of major disciplinary 
actions remains shrouded in doubt for months if not years on 
end, due to the existence of pending grievances. In many 
cases, employees would be out of work while the MSPB 
waits for a grievance to run its course. Federal employers, 
for their part, might decline to impose progressive discipli- 
nary measures because of the concern that the existence of 

3 Contrary to respondent’s suggestion (at 29), the delay in processing 
the grievances in this case is by no means an aberration. See also, e.g., In 
re Arbitration Between USPS & NALC, Case No. H94N-4H-D 97053759 
(So. Regular Discipline Arb. Panel May 10, 2001) (Bajork, Arb.) (denial of 
grievance filed in September 1996 challenging employee’s removal); In re 
Arbitration Between USPS & NALC, Case No. H94N-4H-D 98051824 
(Regular Reg’l Arb. Panel Oct. 2, 1999) (Kyler, Arb.) (denial of grievance 
filed in November 1997 challenging employee’s removal); In re Arbitration 
Between USPS & NALC, Case No. H94N-4H-D 96047665 (Regular Reg’l 
Arb. So. Panel Jan. 19, 1997) (Duda, Arb.) (denial of grievance filed in 
November 1995 challenging employee’s removal). 

8 

pending grievances would unduly prolong the appeals 
process. Indeed, even respondent acknowledges (at 25) that 
her narrow rule might lead employers to “forfeit reliance on 
prior disciplinary actions still under review.” When it 
enacted the CSRA, Congress sought to eliminate precisely 
such disincentives. Cf. Fausto, 484 U.S. at 445 (Under the 
former civil service system, the “general perception was that 
‘appeals processes were so lengthy and complicated that 
managers in the civil service often avoided taking discipli- 
nary action’ against employees even when it was clearly 
warranted.”) (internal brackets omitted).4 

c. While cavalierly dismissing the decades-old admini- 
strative practice, respondent argues that this Court should 
affirm because “[t]he narrow rule has long been applied in 
arbitration.” Resp. Br. 20 (emphasis added); see id. at 2, 24- 

26. There are several problems with that argument, not the 

4 Respondent claims (at 29) that “the failure of respondent’s griev- 
ances to proceed to arbitration is due entirely to the Postal Service’s own 
purposeful delay,” relying on her own account of non-record events. See 
also Resp. Br. 9-12. That claim is incorrect. The Postal Service was 
scheduling hearing dates for each of her grievances when, in December 
1997, the union sought, and the Postal Service agreed, to hold the griev- 
ances in abeyance pending her MSPB appeal. After the MSPB’s initial 
decision, an arbitration hearing was held in July 1999, during which one 
grievance was arbitrated. A second hearing for the remaining grievances 
was set for November 1999. But after the MSPB issued its final decision 
in October 1999, the union referred the remaining grievances to the 
national level and then, in February 2000, the union withdrew those 
grievances without prejudice. The union reasserted those grievances in 
March 2001, shortly after this Court granted certiorari. But the fact 
remains that respondent’s grievances remained in limbo for a period of 
nearly 16 months due to the union’s own actions. Moreover, if, as respon- 
dent now alleges, the Postal Service had sought improperly to delay the 
resolution of her grievances, the union (in which respondent was a 
steward) could have sought to compel arbitration by filing suit under 39 
U.S.C. 1208, filing an unfair labor practice charge under 39 U.S.C. 1209(a), 
or filing a national-level grievance. 

9 

least of which is that respondent never raised it before the 
MSPB or the Federal Circuit. Indeed, although respondent 
asserted in her opposition to certiorari (at 19) that 
“arbitrators may not sustain disciplinary actions in reliance 
on unresolved priors,” she never argued in that brief that the 
practice followed by some arbitrators was binding on the 
MSPB or controlling in this case, and for good reason. 

To the extent that substantive rules differ between the 
MSPB and arbitration contexts, Cornelius v. Nutt, 472 U.S. 
648 (1985), establishes that arbitration rules must yield. In 
Cornelius, this Court held that arbitrators must apply the 
same substantive law as the MSPB in reviewing agency 
disciplinary actions that could have been appealed to the 
Board. See id. at 660-662; see also Westbrook v. Department 
of the Air Force, 77 M.S.P.R. 149, 155 (1997); Cockrell v. 
Department of the Air Force, 58 M.S.P.R. 211, 217 (1993); 
NTEU Br. 4 (recognizing Cornelius rule). 

To be sure, arbitrators may apply their own procedural 
rules in processing grievances. Because it bears directly on 
the reasonableness of an agency’s disciplinary action and, 
indeed, may prove outcome determinative, the Bolling rule 
is substantive in nature and thus binding under Cornelius. 
But if the Bolling rule were procedural, it would simply be 
one of the many factors that a preference-eligible employee 
must take into account in deciding whether to appeal a major 
disciplinary action to the MSPB, or challenge it under a 
negotiated grievance procedure. Respondent’s amici 
suggest that the arbitration rule is more favorable and so the 
MSPB must apply it to avoid disadvantaging preference 
eligible employees. NALC Br. 10-11. However, it is hard to 
see how preference eligible employees are disadvantaged by 
any difference in the arbitration and MSPB procedures when 
they can choose between challenging major discipline in the 
MSPB or by arbitration. Moreover, the choice that respon- 
dent confronts is reflected in the Postal Service’s agreement 

10 

with the NALC (art. 16.9), which provides that when a 
preference-eligible employee elects to appeal to the MSPB, 
“the employee thereby waives access to any procedure 
under the Agreement beyond Step 3 of the grievance- 
arbitration procedure.” Step 3 occurs while a grievance is 
still before the agency, prior to any arbitration.5 

d. Respondent claims (at 26) that her narrow rule is more 
“[s]ensible” than the MSPB’s practice, arguing that her rule 
is necessary to eliminate “strategic gamesmanship.” That is 
precisely the sort of policy argument that Congress commit- 
ted to the discretion of the MSPB. See U.S. Br. 17-18. The 
question for the courts is not whether one rule is more 
“sensible” than the other; rather, it is whether the rule 
applied by the MSPB is arbitrary and capricious, or other- 
wise contrary to law. Neither respondent nor her amici has 
come close to satisfying that threshold. 

In any event, respondent’s policy concerns (which were 
not advanced below) are misplaced. There is no reason for 
this Court to disregard the traditional presumption of 
administrative regularity (see U.S. Br. 36-37) and attribute 
illicit motives to federal employers. The Bolling framework 
has been in place for over two decades and none of the 
horribles identified by respondent (at 27) or her amici 

5 The NALC argues that the Federal Circuit’s ruling is consistent 
with the Postal Reorganization Act (PRA), 39 U.S.C. 101 et seq., claiming 
that “[t]he PRA allows application of federal civil service law to postal 
employee removal cases only to the extent not inconsistent with applicable 
collective bargaining agreements.” NALC Br. 5 (citing 39 U.S.C. 
1005(a)(1)(A)). Even if that were true in the case of the typical postal 
employee, the PRA expressly provides that in the case of a preference 
eligible employee such as respondent the pertinent provisions of the 
CSRA “shall apply * * * in the same manner and under the same 
conditions” as they do with respect to other employees covered by the 
CSRA. 39 U.S.C. 1005(a)(2); see 39 U.S.C. 1005(a)(4)(A). Respondent 
herself acknowledges (at 3) as much, which may explain why she did not 
rely on the PRA in the MSPB or the Federal Circuit. 

11 

(AFGE Br. 13) have materialized. Furthermore, any incen- 
tive that employers might have to “manipulate the system” 
(Resp. Br. 27) is already dealt with by Bolling, which per- 
mits employees collaterally to attack any prior disciplinary 
actions that remain subject to pending grievances. Federal 
labor laws may offer additional checks on any strategic be- 
havior by federal employers. See note 4, supra. 

At the same time, respondent simply ignores the other 
side of the equation. Preventing federal agencies, or the 
MSPB, from considering prior disciplinary actions subject to 
pending grievances creates an obvious incentive for 
recidivist employees (or their unions) to grieve virtually any 
disciplinary action, and then prolong the proceedings for as 
long as possible See U.S. Br. 36. Moreover, respondent’s 
narrow rule could have the adverse effect of discouraging 
employers from relying on prior disciplinary actions in 
assessing the appropriate penalty for continuing misconduct, 
thus impeding employers’ efforts to employ what all agree is 
a valuable human resource management tool—progressive 
discipline. See id. at 25-26 & n.7. 

III. The Due Process Clause Does Not Demand 
Rejection Of The Settled Administrative 
Practice 

The established administrative practice provides employ- 
ees with more than adequate process to satisfy any constitu- 
tional or statutory command. See U.S. Br. 37-38. The 
Federal Circuit did not purport to rest its decision on due 
process grounds. Respondent likewise has not raised any 
constitutional argument. Instead, she argues that the many 
procedural protections afforded by the CSRA and the 
MSPB’s rules “do not render the narrow rule unnecessary,” 
Resp. Br. 34 (initial capitals omitted), and suggests that the 
existing administrative practice is “unfair[].” Respondent’s 
amici go further and suggest that the settled administrative 

12 

practice is unconstitutional. See NALC Br. 8-10; AFGE Br. 
6-10. Those arguments should be rejected. 

With respect to even minor disciplinary actions, the 
CSRA guarantees employees notice, the right to representa- 
tion, an opportunity to respond, and a written statement of 
the reasons for the disciplinary action. See 5 U.S.C. 7503(b), 
7513(b). An employee who is subjected to a major dis- 
ciplinary action is entitled to those protections, and to appeal 
the disciplinary action to the MSPB. 5 U.S.C. 7701; U.S. Br. 
3-4. In the MSPB, the employer bears the burden of 
establishing that the adverse action at issue is supported by 
a preponderance of the evidence. 5 U.S.C. 7701(c)(1)(B). 
That pre- and post-deprivation process clearly exceeds any 
constitutional minimum. 

The MSPB’s Bolling rule provides employees with addi- 
tional protection by allowing them to mount a collateral 
attack on prior discipline that provides a basis for the 
current action. See Resp. Br. 35 (“The Bolling rule does 
permit collateral attack of prior disciplines.”). Respondent 
(at 35-36) and her amici (AFGE Br. 9) complain that Bolling 
calls for clear-error review of the prior action when the 
employee already has had some opportunity to challenge it. 
But no principle of due process entitles an employee to a de 
novo standard of collateral review, especially when the 
employee already has had an opportunity to mount a direct 
challenge to the prior action before the agency, and has a full 
opportunity before the MSPB to challenge (de novo) the 
disciplinary action relying on that prior action. The fact that 
a non-constitutionally mandated grievance to the prior dis- 
cipline has not run its full course does not entitle the em- 
ployee to a de novo standard of collateral review in the 
MSPB. Moreover, 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 

13 

MSPB review of minor disciplinary actions. See U.S. Br. 3 

n.1. 
Respondent attacks (at 36) the clear-error standard on the 
ground that most agency actions have been upheld under 
that standard. But a reversal rate, without more, says little 
about the adequacy of a standard of review. Indeed, that 
track record could just as easily be viewed as a sign that 
prior disciplinary actions are generally well-founded and, 
thus, ordinarily reliable evidence. In any event, respondent 
is in a poor position to attack the adequacy of Bolling’s clear- 
error standard of collateral review. While she was advised 
that “she could present argument concerning whether the 
prior actions were clearly erroneous,” respondent “did not 
set forth any such arguments” in the MSPB, Pet. App. 37a, 
let alone argue that the MSPB should have considered the 
validity of her prior disciplinary actions de novo. See U.S. 
Br. 23. Likewise, respondent’s and amici’s claim that 
Bolling’s clear-error collateral review conflicts with the 
CSRA’s requirement that employers justify their actions by 
a preponderance of the evidence is flawed. Nothing in the 
Bolling rule diminishes the employer’s burden of proving the 
major disciplinary action on direct review by a preponder- 
ance of the evidence. 

Furthermore, as respondent acknowledges (at 37), the 
MSPB’s rules establish a reopening procedure that offers an 
additional safeguard. See U.S. Br. 22-23. Respondent claims 
(at 37) that “the MSPB’s ability to reopen its decisions 
provides no solace at all to employees in respondent’s 
predicament.” That is an unlikely argument coming from 
respondent. As respondent acknowledges (at 11), one of her 
prior actions was overturned by an arbitrator two months 
before the MSPB issued its final decision in her case. But 
respondent never presented that evidence to the MSPB 
while her appeal was pending before the Board, and never 

14 

sought to invoke the reopening procedure after her appeal 
became final. See U.S. Br. 38. 

Respondent asserts that once the MSPB affirms a decision 
to remove an employee, some collective bargaining agree- 
ments provide that pending grievances on behalf of the 
discharged employee should be dismissed, which in turn may 
limit the utility of the reopening procedure. While it is true 
that the union’s typical practice is to withdraw pending 
grievances once an agency’s removal decision has been 
affirmed, the reopening procedure still provides significant 
protection. First, in all major disciplinary actions besides 
discharges, the reopening procedure provides a full oppor- 
tunity to bring successful grievances to the attention of the 
Board, no matter how long the grievance process takes. 
Second, even for discharge actions, the MSPB rules 
including the reopening procedure allow employees to alert 
the Board of successful grievances up until the point that the 
removal becomes final (and grievances are dropped under a 
collective bargaining agreement). Thus, the MSPB rules 
provide protection during a significant interval. Respon- 
dent’s complaint that that interval is too brief is difficult to 
reconcile with her claim that arbitration is more efficient 
than MSPB proceedings. 

In any event, even where a discharged employee’s collec- 
tive bargaining agreement limits the effectiveness of the 
reopening procedure, the employee still has received more 
than adequate process in challenging her removal. The 
employee will have received all the procedural protections to 
which she is entitled under the CSRA in challenging minor 
disciplinary actions, an opportunity to challenge those 
actions collaterally under the Bolling framework, and an 

15 

opportunity to challenge the major disciplinary action on 
appeal in the MSPB and the Federal Circuit.6 

Although respondent and her amici argue that additional 
process would be desirable, that is once again precisely the 
sort of policy consideration that Congress left to the MSPB 
to weigh against other considerations, such as the virtues of 
finality with respect to major employment actions and 
concerns that—as Congress recognized when it enacted the 
CSRA—overly elaborate procedural rules “often become the 
refuge of the incompetent employee.” S. Rep. No. 969, 
supra, at 3; see U.S. Br. 15-16. 

IV. The Question Of The Appropriate Remedy Is 
Better Left To The Federal Circuit On Remand 

Respondent claims (at 39) that “[i]t is not entirely clear 
what the Postal Service expects from this Court” in the way 
of relief. To be clear, the Court should decide the question 
on which it granted certiorari, reverse the judgment below, 
and remand for further proceedings in the Federal Circuit. 

If the Court reverses the Federal Circuit’s decision and 
the erroneous rule on which it is grounded (Pet. App. 7a), 
then further proceedings would be necessary on remand to 
determine the appropriate relief. On the one hand, the 
Federal Circuit could conclude that the MSPB’s decision 
should be affirmed, even though one of respondent’s prior 

6 Any objection to the union’s practice of withdrawing grievances 
pending the MSPB’s affirmance of an employee’s discharge may be better 
directed to the collective bargaining arrangement than to the MSPB’s 
rules. Under that agreement, the union mainains pre-separation griev- 
ances when the employee’s separation is due to resignation, retirement, or 
death, but not when the employee is discharged for misconduct. See In re 
Arbitration Between USPS & NALC, Case No. H7N-5P-C 1132, at 7 
(Nat’l Arb. Panel Mar. 26, 1990) (Mittenthal, Arb.). In any event, if the 
terms of respondent’s collective bargaining agreement limit the effective- 
ness of the MSPB’s procedural protections, the answer is certainly not to 
declare the MSPB’s rules unconstitutional. 

16 

actions was set aside by an arbitrator while her appeal was 
pending before the Board. See U.S. Br. 38-39 & n.13. On the 
other hand, the Federal Circuit could decide to return this 
case to the MSPB for further consideration in light of this 
Court’s ruling and the fact that one of respondent’s priors 
was set aside. That determination should be left for the 
Federal Circuit on remand, after further briefing in light of 
this Court’s decision. Cf., e.g., Shaw v. Murphy, 121 S. Ct. 
1475, 1481 (2001).7 

As a last-ditch measure, respondent suggests (at 41-46) 
that the Court should dismiss the writ of certiorari. In doing 
so, respondent re-airs the same arguments that she made in 
opposition to certiorari. Those arguments were wrong at 
certiorari stage, see Cert. Reply Br. 5-9, and remain un- 
availing. This case presents an ideal vehicle to review the 
Federal Circuit’s decision to scuttle the settled administra- 
tive practice. The MSPB relied on that practice in affirming 
respondent’s removal. Pet. App. 36a-37a. The government 
relied on that practice in defending the MSPB’s decision in 
the Federal Circuit. Gov’t C.A. Br. 16; see Cert. Reply Br. 5- 
6 & n.3. Furthermore, the Federal Circuit’s decision rejec- 
ting the settled administrative practice undeniably will 
affect the outcome in this case (see Resp. Br. 46), and, more 
to the point, will have an enormous effect on the efficiency of 
the federal civil service system. 

7 Respondent suggests (at 2, 39) that the Postal Service has conceded 
that her “removal cannot stand in light of the arbitral decision overturning 
one of the three prior disciplinary actions in respondent’s record.” That is 
incorrect. See U.S. Br. 39 & n.13. Indeed, even respondent acknowledges 
(at 46) that her removal remains a possibility, though she claims that it is 
“extremely unlikely.” The final determination cannot be made until this 
Court decides the question presented and, thus, the extent to which 
respondent’s disciplinary record may be considered by the agency. 

17 

* * * * * 

For the foregoing reasons, and those in our opening brief, 
the judgment of the Federal Circuit should be reversed. 

Respectfully submitted. 

THEODORE B. OLSON 
Solicitor General 

MARY ANNE GIBBONS 
General Counsel 
United States Postal Service 

JULY 2001