No. 00-758 

In the Supreme Court of the United States 

UNITED STATES POSTAL SERVICE, PETITIONER 

v. 

MARIA A. GREGORY 

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

REPLY BRIEF FOR THE PETITIONER 

MARY ANNE GIBBONS 

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

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

TABLE OF AUTHORITIES 

Cases: Page 

American Potash & Chem. Corp. v. United States, 
402 F.2d 1000 (Ct. Cl. 1968) ................................................. 
6 

Devine v. Sutermeister, 724 F.2d 1558 (Fed. Cir. 
(1983) ........................................................................................ 8 

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

3 

Statutes: 

Civil Service Reform Act of 1978, 5 U.S.C. 7101 et seq. .... 

3 

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

5 U.S.C. 7513(a) .................................................................... 
1 

5 U.S.C. 7703(a)(1) ............................................................... 
7 

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

5 U.S.C. 7703(d) (1994 & Supp. IV 1998) ......................... 
1 

Miscellaneous: 

S. Rep. No. 969, 95th Cong., 2d Sess. (1978) ........................ 3 

(I) 

In the Supreme Court of the United States 

No. 00-758 

UNITED STATES POSTAL SERVICE, PETITIONER 

v. 

MARIA A. GREGORY 

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

REPLY BRIEF FOR THE PETITIONER 

1. Respondent’s attempt (Br. in Opp. 16-20) to minimize 
the practical significance of this case is unavailing. The 
Federal Circuit held “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.” 
Pet. App. 7a. As we have explained (Pet. 6-7, 14-18), that 
rule not only contradicts the longstanding administrative 
practice, but, if allowed to stand, will substantially impede 
the efforts of federal agencies to meet their statutory 
mandate of maintaining an efficient civil service. See 5 
U.S.C. 7513(a). In particular, the court of appeals’ new rule 
will tie the hands of federal employers in dealing with 
employee recidivists whose actions establish a pattern or 
practice of misconduct that warrants more serious discipline 

(1) 

2 

than might be called for by any single incident. At the same 
time, the court of appeals’ ruling creates an incentive for 
employees, especially less-than-model employees, to initiate 
proceedings challenging all disciplinary actions, even rela- 
tively minor ones.1 

Claiming that those concerns “are greatly exaggerated,” 
respondent tries (Br. in Opp. 16) to reassure the Court by 
observing that “the terms of the Federal Circuit’s opinion do 
not state that agencies may never rely on unresolved priors 
in imposing disciplinary action,” but rather “only that the 
MSPB may not rely on unresolved priors in sustaining 
disciplinary action.” That is little comfort, however, to the 
numerous federal agencies whose decisions are reviewable 
by the MSPB. If, as the Federal Circuit held, “prior 
disciplinary actions that are subject to ongoing proceedings 
may not be used [before the MSPB] to support the reason- 
ableness of a penalty,” Pet. App. 1a-2a, then for practical 
purposes federal agencies—who must defend their actions 
before the MSPB—may not consider such prior disciplinary 
actions in calibrating the punishment for recidivist 
employees. 

Respondent suggests (Br. in Opp. 17) that the Federal 
Circuit’s new rule is “nothing more than a principle gov- 
erning the scheduling of appeals: the MSPB should not 
decide a case until relevant priors have been arbitrated.” 

1 Respondent’s disciplinary record negates the suggestion that she 
was “a model employee.” Br. in Opp. 3. See Pet. 2-3. Moreover, while 
respondent asserts (Br. in Opp. 3) that she was retaliated against by her 
supervisors for complaining to the Equal Employment Opportunity Com- 
mission (EEOC) and for union activities, the Merit Systems Protection 
Board (MSPB) considered and rejected those allegations, see Pet. App. 
32a-35a, and the Federal Circuit affirmed that conclusion, see id. at 4a-5a. 
See also id. at 5a (“[N]o evidence was introduced that would show that 
discrimination or retaliation played any role in the evaluation of [respon- 
dent’s] performance or penalty.”). 

3 

But a rule requiring the MSPB to delay its decisions would 
contravene the intent of Congress in enacting the Civil 
Service Reform Act of 1978 (Reform Act). As this Court has 
observed, one of the purposes of that Act was to streamline 
the appeals process. See United States v. Fausto, 484 U.S. 
439, 445 (1988) (citing S. Rep. No. 969, 95th Cong., 2d Sess. 9 
(1978)). In addition, such a rule would prolong uncertainty 
as to the finality of important employment decisions, further 
disrupting the workplace to the detriment of federal em- 
ployers and employees. MSPB review could be held in 
abeyance for months or even (as would be true in this case) 
years while pending grievances or other proceedings were 
completed. 

Respondent claims (Br. in Opp. 17-18) that, “in the normal 
course, challenges to prior disciplinary actions will be re- 
solved sooner than challenges to later ones, so that grie- 
vances concerning priors will usually have been resolved by 
the time the MSPB is ready to decide,” and that, therefore, 
“it will likely be the rare case in which a later-initiated 
MSPB proceeding leapfrogs an earlier-initiated grievance 
proceeding.” That claim is unsupported and incorrect. This 
case illustrates that cases can and do reach the MSPB in that 
posture in the ordinary course. The inherent informality of 
grievance proceedings often results in delay, including at the 
request of the parties. It is not uncommon, moreover, for 
parties voluntarily to defer arbitration while litigation of 
more serious disciplinary action is pending before the MSPB, 
as the parties in this case initially agreed to do. 

More important, respondent’s discussion of “leap-frog- 
ging” in the MSPB does not address the extremely common 
situation in which a federal agency must discipline a recidi- 
vist employee while grievance proceedings are still pending 
with respect to prior disciplinary actions against that 
employee. As discussed above, in deciding what punishment 
is appropriate in those circumstances, the Federal Circuit’s 

4 

decision effectively requires federal employers to ignore the 
prior disciplinary actions—even those suggesting a pattern 
of misconduct threatening the efficiency of the federal 
workplace or the safety of individuals who work there—for 
as long as the actions remain subject to pending grievance 
proceedings that may take years to complete.2 

Respondent asks (Br. in Opp. 20) this Court to dismiss the 
concern that recidivist employees will file frivolous grie- 
vances to insulate their prior disciplinary actions from 
review in connection with later misconduct on the ground 
that, “[u]nder most collective bargaining agreements, only 
the union can file a grievance.” As respondent acknowl- 
edges, however, that is not true with respect to the collec- 
tive bargaining agreement involved in this case. See id. at 6 
(“A disciplined postal worker (or her union) may file a 
grievance pursuant to the applicable collective bargaining 
agreement.”). Moreover, the Reform Act specifically pro- 
vides that “[a]ny negotiated grievance procedure” must 
“assure * * * an employee the right to present a grievance 
on the employee’s own behalf.” 5 U.S.C. 7121(b)(1)(C)(ii). 
And, in any event, the ability of federal agencies to maintain 
an efficient civil service should not be subordinated to the 
discretion of local union officials who owe a special obligation 
to union members. 

2. Respondent’s effort (Br. in Opp. 1-2, 11-15) to show 
that this case is a poor vehicle to decide the important 
question presented is equally lacking in support. The 
question presented was squarely raised and decided by the 

2 In addition, it is not unusual for litigation to proceed in the MSPB 
while prior disciplinary actions are being challenged in the EEOC. EEOC 
proceedings and subsequent court appeals often take several years to 
complete. Under the Federal Circuit’s rule, federal agencies and the 
MSPB could not consider a prior disciplinary action (or series of actions) 
that remained subject to those proceedings as well. 

5 

court of appeals below, see Pet. App. 7a, and that question is 
directly at issue here. 

a. Contrary to respondent’s suggestion (Br. in Opp. 11), 
the Postal Service argued below that it was entitled to con- 
sider respondent’s entire disciplinary record, including dis- 
ciplinary actions subject to pending proceedings, in deter- 
mining the appropriate sanction for her latest infraction. In 
her Federal Circuit brief, respondent argued that the MSPB 
had erred in relying on her prior disciplinary actions in 
removing her, and submitted new evidence (not presented to 
the MSPB) that she contended supported her challenge to 
the prior discipline. Pet. C.A. Br. 2-4. In response, the 
Postal Service argued that, “[i]n determining the reason- 
ableness of the penalty, [respondent’s] disciplinary record 
was correctly considered.” Gov’t C.A. Br. 16. In addition, 
the Postal Service argued that respondent should not be 
permitted for the first time on appeal to present new 
evidence challenging the prior disciplinary actions. Ibid. 

The Federal Circuit held “that, as a matter of law, con- 
sideration may not be given to prior disciplinary actions that 
are the subject of ongoing proceedings challenging their 
merits,” and vacated the MSPB’s decision. Pet. App. 7a. At 
that point, the Postal Service filed a petition for rehearing, 
arguing that the new ruling was wrong as a matter of law 
and ill-advised as a matter of policy. See Gov’t C.A. Pet. for 
Reh’g 11-20. In so arguing, the Postal Service elaborated on 
the position stated in its merits brief that the MSPB 
properly considered respondent’s prior disciplinary record in 
affirming her removal. But that elaboration—in response to 
the court of appeals’ decision overturning the longstanding 
administrative practice—does not now insulate the court of 
appeals’ ruling from review in this Court.3 

3 Because the arguments made in the Postal Service’s petition for 
rehearing overlapped with the position stated in the agency’s merits 

6 

b. Respondent is also mistaken in claiming (Br. in Opp. 

11) that the question presented “is not implicated on the 
facts of this case.” That argument is based on the 
assumption that respondent’s second and third disciplinary 
actions were based on the first action (the May 1997 letter of 
warning overturned by the arbitrator), and that therefore 
the Postal Service could not consider the second and third 
actions in reviewing the reasonableness of the penalty re- 
spondent received for her fourth infraction. See id. at 11-12. 
But respondent apparently recognizes that this assumption 
is not necessarily correct and, as a result, claims only— 
without support—that it is “likely” correct. Id. at 12 n.5. 
Moreover, respondent acknowledges that “the MSPB may 
be entitled to rely at least on the findings of infraction in 
Cases 2 and 3—even if not on the penalty imposed in those 
cases,” ibid., though the Federal Circuit held to the contrary. 
See Pet. App. 7a. 

The Federal Circuit erroneously directed the MSPB to 
reevaluate respondent’s removal, or direct the Postal Ser- 
vice to do so, without regard to any disciplinary actions sub- 
ject to pending challenges. Two of respondent’s prior dis- 
ciplinary actions remained undisturbed. Thus, at a mini- 
mum, the MSPB should be free to consider whether respon- 
dent’s latest punishment remains appropriate in light of 

brief—i.e., that, “[i]n determining the reasonableness of the penalty, 
[respondent’s] disciplinary record was correctly considered,” Gov’t C.A. 
Br. 12—respondent is wrong in suggesting that the Postal Service was 
precluded from making those arguments in support of rehearing. See Br. 
in Opp. 11. In any event, regardless of what the Postal Service had argued 
in its merits brief, the Postal Service was entitled to respond in its petition 
for rehearing to the sweeping rule of decision that was announced by the 
Federal Circuit. Cf. American Potash & Chem. Corp. v. United States, 
402 F.2d 1000, 1002 n.5 (Ct. Cl. 1968) (considering “new issue raised for the 
first time in a petition for rehearing” where “the court itself raised and 
discussed the question” in the panel decision). 

7 

those prior actions.4 The possibility that the Board might 
decide in the event of a remand that respondent’s removal is 
no longer appropriate in light of her prior disciplinary record 
(minus the first incident) in no way makes it “unnecessary” 
(Br. in Opp. 13) for this Court to decide whether that inquiry 
may be undertaken by the Board in the first place.5 

4 In its petition for rehearing, the Postal Service suggested that the 
court of appeals should “remand this action to the MSPB to determine the 
issue of the appropriate penalty, with instructions that the board may not 
consider the one prior disciplinary action that was overturned by the 
arbitrator.” Gov’t C.A. Pet. for Reh’g 20. If this Court grants certiorari 
and reverses the Federal Circuit’s decision, however, the court of appeals 
could decide that such a remand would be unnecessary or inappropriate. 
The Reform Act provides that the Federal Circuit “shall review the 
record” of MSPB proceedings and set aside the findings or conclusions of 
those proceedings when they are unlawful. 5 U.S.C. 7703(c). Respondent 
did not place into the record of the MSPB proceedings the arbitrator’s 
decision overturning the first disciplinary action (even though that deci- 
sion was issued months before the MSPB’s initial decision became final); 
instead, the Federal Circuit took “judicial notice” of the arbitrator’s deci- 
sion. Pet. App. 5a. Accordingly, if this Court concludes that the MSPB 
was entitled to consider respondent’s prior disciplinary actions and re- 
verses the court of appeals’ decision, then on remand the Federal Circuit 
could decide that in reviewing the MSPB’s decision the court was limited 
to “the record” (5 U.S.C. 7703(c)) that was before the MSPB, and that the 
MSPB’s initial decision in this case should be reinstated based on that 
record. That result would not leave respondent without an avenue for 
bringing to the attention of the MSPB the arbitrator’s July 1999 decision. 
As we have explained (Pet. 14), the MSPB has the discretion to reopen 
any case to reconsider its decision. 

5 In fact, in upholding respondent’s removal penalty, the MSPB did 
not place any particular reliance on the May 1997 letter of warning that 
was later overturned. Instead, the Board emphasized that respondent’s 
prior disciplinary actions had “involved unauthorized overtime,” a refer- 
ence to the misconduct resulting in respondent’s suspension on August 18, 
1997, for unrelated infractions. 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 appellant’s prior 

8 

c. Respondent claims (Br. in Opp. 2) that there is “no 
reason” why this Court should grant review in this case. 
The enormous practical significance of this case to the 
federal civil service system, however, counsels strongly in 
favor of deciding the question presented at this time. If the 
Federal Circuit’s decision is allowed to stand, it will require 
a fundamental change in the manner in which discipline is 
calibrated by federal employers. Moreover, as we have 
explained (Pet. 6-7), it will be difficult for an agency to chal- 
lenge the MSPB’s refusal in a subsequent case to consider a 
recidivist employee’s prior disciplinary actions in reviewing 
a penalty, because, as respondent acknowledges (Br. in Opp. 
14 & n.6), agencies do not enjoy an automatic right of appeal 
from adverse MSPB decisions. See 5 U.S.C. 7703(a)(1); 5 
U.S.C. 7703(d) (1994 & Supp. IV 1998).6 Respondent claims 
(Br. in Opp. 14) that the government may ask the Federal 
Circuit to exercise its “discretionary jurisdiction” to accept 
such an appeal. But respondent does not explain why the 
Federal Circuit would do so to consider a question that it 
already has decided in this case. See note 6, supra. Respon- 
dent also suggests that the government may seek certiorari 
in this Court if the Federal Circuit denies the government’s 

disciplinary actions also involved unauthorized overtime, that one in- 
stance takes on additional significance and tends to reveal a pattern of 
conduct by the appellant to disregard the agency’s and her supervisor’s 
expectations of her performance and conduct.”) (emphasis added). 

6 The Reform Act authorizes the Office of Personnel Management 
(OPM), not the immediately affected agency, to petition for review of an 
adverse MSPB ruling, and states that “[t]he granting of [such a] petition 

* * * shall be at the discretion of the Court of Appeals.” 5 U.S.C. 7703(d). 
OPM invokes its right to petition for review of adverse MSPB decisions in 
only a few cases each year. Moreover, the Federal Circuit has held that 
“OPM should only bring a petition for review in ‘exceptional’ cases,” and 
has indicated that the Board’s decision to mitigate a penalty in a particular 
case ordinarily will not meet that standard. Devine v. Sutermeister, 724 
F.2d 1558, 1566 (1983). 

9 

request for review. Br. in Opp. 14 n.6. But in that scenario 
this Court would be left without the benefit of a court of 
appeals’ decision fleshing out the case, and the absence of 
such a decision would likely make such a case less appropri- 
ate for review than this one. In short, the alternative 
avenues of review claimed by respondent are illusory.7 

3. Respondent devotes (Br. in Opp. 20-22) little effort to 
defending the court of appeals’ decision on the merits. Re- 
spondent suggests, however, that the Federal Circuit’s rule 
is supported by the fact that federal agencies do not have an 
incentive to make sound employment decisions in the first 
instance and that, instead, they actually have a “strong 
incentive to get [such decisions] wrong the first time.” Id. at 

22. That supposition is completely unfounded, ignores the 
presumption of correctness that is typically afforded admini- 
strative actions (see Pet. 12), and assumes that federal 
employers will ignore their statutory mandate to maintain 
an efficient civil service system.8 
As we have explained in our petition (at 9-12), and respon- 
dent does not seriously attempt to rebut, the longstanding 
administrative practice is that federal employers may—and, 
indeed, should—consider an employee’s prior disciplinary 
record in calibrating the punishment for subsequent mis- 
conduct, including disciplinary actions that remain the sub- 

7 As we have explained (Pet. 6), the absence of a circuit conflict does 
not counsel against granting certiorari in this case. And respondent 
acknowledges (Br. in Opp. 10) that “[b]ecause the Federal Circuit has 
exclusive jurisdiction over appeals from the MSPB, the decision below 

* * * could not conflict with the decision of any other court of appeals.” 

8 Respondent claims (Br. in Opp. 21) that “disciplinary action is not 
final agency action.” But the fact that an agency’s decision to remove an 
employee is subject to challenge in the MSPB, a separate administrative 
entity, does not render the disciplinary action of the agency-employer 
interlocutory, or otherwise affect application of the presumption of 
correctness that has long been afforded agency action. See Pet. 12. 

10 

ject of a pending grievance or other proceedings. That prac- 
tice is consistent with the protections afforded federal em- 
ployees under the Reform Act, and promotes government 
efficiency. The Federal Circuit’s decision in this case consti- 
tutes a stark departure from that practice. That departure 
is not supported by any existing federal law or policy. And it 
amounts to an unwarranted judicial incursion into the 
sensitive area of federal employer-employee relations. 

* * * * * 

For the foregoing reasons and those stated in the petition, 
the petition for a writ of certiorari should be granted. 

Respectfully submitted. 

MARY ANNE GIBBONS 

General Counsel 
United States Postal Service 
BARBARA D. UNDERWOOD 
Acting Solicitor General 

JANUARY 2001