U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

United States Postal Service v. Maria A. Gregory, Supreme Court, No. 00-758, November 13, 2001.

• The Supreme Court held that the Merit Systems Protection Board (MSPB) may rely on an employee's prior disciplinary action in determining the appropriateness of a current penalty even when the prior discipline is undergoing review in another forum.
  
  
• The Court held that the Federal Circuit is to review the substance of decisions by the MSPB under an "extremely narrow" arbitrary and capricious standard which allows the Board "wide latitude" in fulfilling its obligation to review agency disciplinary actions.

The Merit Systems Protection Board (MSPB) regional office's initial decision in this case sustained the agency's removal of the appellant for failure to perform her duties in a satisfactory manner. In determining the appropriateness of the penalty, the MSPB judge considered the appellant's prior disciplinary record, including actions that were subject to dispute. When the full Board of the MSPB in Washington, D.C. denied the appellant's petition for review, the appellant took the matter to the Federal Circuit. That court issued Gregory v. U.S. Postal Service, 212 F.3d 1296 (Fed. Cir. 2000), in which it held that the Board may not rely on prior discipline which is subject to ongoing proceedings challenging the merits. The Office of Personnel Management (OPM) joined the Postal Service and the Department of Justice in an unsuccessful request to the court for reconsideration. The matter was then taken to the Supreme Court which granted certiori, heard oral arguments, and issued a 9-0 decision on November 13, 2001, vacating the Federal Circuit's decision.

The Court held that the MSPB "may review independently prior disciplinary actions pending in grievance proceedings when reviewing termination and other serious disciplinary actions." The Court commented that the Board's independent review of an agency's actions does not violate the general statutory scheme under the Civil Service Reform Act of 1978 (CSRA) calling for the Board to review more serious discipline. The Court also held that the Federal Circuit's judicial review of MSPB decisions is under the "extremely narrow arbitrary and capricious standard, which allows the Board wide latitude in fulfilling its obligation to review agency disciplinary actions." It said that the Federal Circuit's only role is to "ascertain if the Board has met the CSRA's minimum standards."

Since one of the prior disciplinary actions involved in setting the penalty in the case had been reversed by an arbitration decision after the agency took the removal action, the Court remanded the matter to determine what effect this reversal might have on Ms. Gregory's removal.

The Supreme Court's decision in Gregory is welcome because the Federal Circuit's decision had erroneously overturned decades of settled precedent that balanced employees' rights to fairness with the Government's right to discipline and efficiency. The decision, if left standing, could have encouraged frivolous challenges to prior discipline and shielded from accountability and forced the retention of employees who persist in misconduct. The Government had characterized the Federal Circuit's decision as "an unjustifiable judicial intrusion into federal employee discipline," and described the damage to the civil service as "substantial."