00-758 U.S. Postal Service v. Gregory

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“There is certainly nothing arbitrary about the Board’s decision to independently review prior disciplinary violations. Neither the Federal Circuit nor respondent has suggested that the Board has applied this policy inconsistently-indeed, the Board has taken this same approach for 19 years. See Carr v. Department of Air Force, 9 M. S. P. B. 714 (1982). Nor have they argued that the Board lacks reasons for its approach.

Following the Federal Circuit’s rule would require the Board either to wait until challenges to disciplinary actions pending in grievance proceedings are completed before rendering its decision, or to ignore altogether the violations being challenged in grievance in determining the reasonableness of the penalty. The former may cause undue delay… The latter would, in many cases, effectively preclude agencies from relying on an employee’s disciplinary history, which the Federal Circuit itself acknowledged to be an ‘important factor’ in any disciplinary decision. 212 F.3d, at 1300.

“More important, any suggestion that the Board’s decision to independently review prior disciplinary actions violates sec. 7701(c)(1)(B)’s preponderance of the evidence standard would be incorrect. To the extent that that standard places the burden upon employing agencies to justify all of the violations-including those dealt with in prior disciplinary actions-that are the basis for the penalty, the Board has its own mechanism for allowing agencies to meet that burden. Insofar as Bolling review is adequate to meet this burden of proof, an employing agency may meet its statutory burden to justify prior actions by prevailing either in grievance or before the Board.”

Vacated and remanded.

Local Effect:

The decision reverses the Federal Circuit (which reviews all civil service cases) decision in U.S. Postal Service v. Gregory, 212 F.3d 1296 (2000).

Certiorari to the United States Court of Appeals for the Federal Circuit, O’Connor, J.