Amicus Curiae Brief — Postal Service v. Gregory

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No. 00-758 i JUN 28 2001

IN THE

| | :

Supreme Court of the United States --—

UNITED STATES POSTAL SERVICE,

Petitioner,

Vv.

MARIA A. GREGORY,

Respondent.

On Writ of Certiorari to the ie

United States Court of Appeals RECHVy ED

for the Federal Circuit

BRIEF OF AMICUS CURIAE

AMERICAN FEDERATION OF GOVERNMENT EX -—

EMPLOYEES, AFL-CIO, IN SUPPORT OF THE

RESPONDENT, MARIA A. GREGORY

MARK D. ROTH *

General Counsel

CHARLES A. HOBBIE

Deputy General Counsel

TEJU RAU

Staff Counsel

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES,

AFL-CIO

80 F Street, N.W.

Washington, D.C. 20001

(202) 639-6420

* Counsel of Record Attorneys for Amicus Curiae

WiLSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

® <B> co

BEST AVAILABLE COPY

QUESTION PRESENTED

1. Whether a federal agency may use prior disciplinary

actions that are the subject of pending grievance proceedings

as a significant or primary basis for disciplining or removing

an employee for misconduct pursuant to the Civil Service

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

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED .nccccccccccscccsssccsccvcsccssccsssessseees i

TABLE OF AUTHIORITIES .ccccccccccccsssccccscccsssccsssccsscees iv

PRELIMINARY STATEMENT............. meseunesesenenenscnses l

INTEREST OF THE AMICUS CURIAE .......c0000000000000 l

STATEMENT OF THE CASE....ccccccccccccccccccccscccssesssesere 3

SUMMARY OF ARGUMENT ...........ccccscesseeseserseeresenes 3

FT extintertnerasccscnsscansssssccesnesscsnscsaccscsccscseseseececes 6

I. THE FEDERAL CIRCUIT'S RULING IS

CONSISTENT WITH THE CIVIL SERVICE

REFORM ACT AND THE DUE PROCESS

PROTECTIONS PROVIDED TO FEDERAL

SEI IIT crecnenscenencencacssccssencsnecsscessecsssesccesces 6

Il. THE CONSIDERATION OF PRIOR DIS-

CIPLINARY ACTIONS THAT ARE PEND-

ING INVITES ABUSIVE ADVERSE

RINE ccncsctensctncccssenssscsscsencccsscevccsssscsccceecsonse 12

SE careccdsscnssssncssececssssscscesevenessecccsscssccesqceeeaee 16

(iii)

TABLE OF AUTHORITIES

CASES Page

Blank v. Dept. of the Army, 247 F.3d 1225 (Fed.

ee 14

Board of Regents v. Roth, 408 U.S. 564 (1972)..... 6

Chevron, U.S A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984)...... 12

Citizens to Protect Overton Park v. Volpe, 401

ee 8

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

A Ce cnncernsssasmnesemecmmemmeumenmamennanmenn 6,7

Cornelius v. Nutt, 472 U.S. 648 (1985) ................ 6

Henry v. Dept. of the Navy, 902 F.2d 949 (Fed.

8 9

Genentech Inc. v. U.S. Intern. Trade Com’ n, 122

9 UE 12

Gregory v. United States Postal Service, 212

EE passim

ADMINISTRATIVE DECISIONS

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

(ee 11

Bolling v. Dept. of the Air Force, 9 M.S.P.R. 335

| | passim

Crawford v. Dept. of Justice, 45 M.S.P.R. 234

(RD cnssnsssensessssencespesemensmmenememmennessnmmenmenes 7

Douglas v. Veterans Administration, 5 M.S.P.R.

| ee 8, 11

Eichner v. U.S. Postal Service, 83 M.S.P.R. 202

(I ccsnnsesccnssnssesssessseemmenesnesninemmensigeenssemmnnnns 11

Freeman v. Dept. of Transp., F AA., 20 M.S.P.R.

rR 11

Hubbard v. U.S. Postal Service, 32 M.S.P.R. 505

CIIG Pconecsensesnncsassmemsssensssamssesnepenmetminaniesnaenenens 11

(| | li

TABLE OF AUTHORITIES—Continued

STATUTES AND REGULATIONS

Administrative Procedures Act, 5 U.S.C. § 706....

Civil Service Reform Act of 1978, Pub.L. No.

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5 C.F.R. § 1201.556(a)( 1 (ii) ..........cceecceecerecereeseeees

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MISCELLANEOUS

H.R.Rep. No. 1403, 95th Cong., 2d Sess. 2

(1978), reprinted in, | House Comm. on Post

Office and Civil Service, 96th Cong., Ist Sess.,

Legislative History of the Civil Service Reform

Act of 1978, at 636, 639 (1979)........ccseeeeeeeeees

MSPB Administrative Judges’ Handbook..............

Comnnzd OCIVWOYNANW

IN THE

Supreme Court of the Anited States

No. 00-758

UNITED STATES POSTAL SERVICE,

Petitioner,

Vv.

MARIA A. GREGORY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

BRIEF OF AMICUS CURIAE

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, IN SUPPORT OF THE

RESPONDENT, MARIA A. GREGORY

PRELIMINARY STATEMENT

Pursuant to Supreme Court Rule 37, written consent of the

parties having been obtained in writing and filed with this

brief, the American Federation of Government Employees,

AFL-CIO, files this brief as amicus curiae in support of the

Respondent, Maria A. Gregory.

INTEREST OF THE AMICUS CURIAE '

The American Federation of Government Employees,

AFL-CIO (“AFGE”) is a labor organization which represents

' Pursuant to Rule 37(6) of the Court, APFGE avers that no counsel for a

party in this case authored this brief in whole or in part, and no person or

entity, other than AFGE, its members, or its counsel, made a monetary

contribution to the preparation or submission of this brief.

approximately 600,000 employees of the federal government.

AFGE is the largest labor organization representing non-

postal federal employees in nearly every major department

and agency of the federal government. In its capacity as

exclusive bargaining representative, AFGE negotiates col-

lective bargaining agreements, presents grievances and

administrative complaints, including those before the Merit

Systems Protection Board (“MSPB” or “Board’’), litigates in

federal courts, and engages in legislative activity on behalf of

the employees it represents.

The United States Court of Appeals for the Federal Circuit

has held in Gregory v. United States Postal Service, 212 F.3d

1296, 1300 (Fed. Cir. 2000), that, in an adverse action appeal

by a federal employee, the Board may not consider prior

disciplinary actions that are the subject of ongoing

proceedings challenging the merits of those actions. The

court reasoned that the legitimacy of the reasonable penalty

analysis conducted by the Board would be jeopardized by the

consideration of unreliable evidence such as prior actions still

pending review. /d.

Adverse actions against the federal non-postal employees

whom AFGE represents are subject to the same statutory

provisions as such actions involving postal employees. See

5 U.S.C. § 7511 et seg. and 39 U.S.C. § 1005(a)(1). The

afore-referenced decision of the Federal Circuit, therefore,

affects the adverse action and appeal rights of the hundreds of

thousands of federal, non-postal employees represented by

AFGE, both in administrative proceedings before the Board

under 5 U.S.C. §7513(d) and in grievance arbitrations

pursuant to the Federal Labor-Management Relations Act,

5 U.S.C. §7121(e). As Respondent argues, the Federal

Circuit’s decision provides the only workable solution for the

management of Board cases. AFGE submits, in this brief,

that the Federal Circuit’s decision is also the only result that

is consistent with the the standards and burden of proof

ee eer Fars

established by the Civil Service Reform Act of 1978

(“CSRA”), Pub.L. No. 95-454, 92 Stat. 1111 and due process

protections afforded to federal employees.

Since the effective date of the CSRA, AFGE has actively

protected the statutory rights of federal employees before

agencies, the Board, the Federal Labor Relations Authority,

arbitrators, and the courts. In this case, AFGE’s concern is

that the consideration of pending prior disciplinary actions

under a clearly erroneous standard violates the CSRA and the

due process rights of federal employees. Permitting the

consideration of pending prior disciplinary actions so as to

substantiate the severity of a subsequent disciplinary penalty

also provides agencies with a potentially easy and unlawful

means whereby a series of meritless charges against an

employee may be used to justify a removal action. The

Federal Circuit’s decision rightfully prevents this type of

abuse, while observing the evidentiary standards established

by the CSRA and the due process protections afforded to

federal employees.

AFGE is committed to the protection of the constitutional

and statutory rights of federal employees, and to obtaining

redress for federal employees where rights have been

violated. Because the petitioned-from decision directly

addressses such issues and would affect any adverse action

taken against federal employees, AFGE has a direct and

compelling interest in the outcome of this litigation.

STATEMENT OF THE CASE

Amicus adopts Respondent Maria A. Gregory’s Statement

of the Case.

SUMMARY OF ARGUMENT

The CSRA sets forth the procedures and evidentiary

standards for federal employee appeals of adverse actions.

Under the CSRA, an agency may remove an employee to

promote the efficiency of the service. 5 U.S.C. § 7513(a).

However, if that action is challenged, the agency must prove

its decision by a preponderance of the evidence. 5 U.S.C.

§ 7701(c)(1)(B). In certain cases, the agency relies upon

prior disciplinary actions, that are the subject of pending

proceedings, to justify a penalty or establish recidivism (as in

this case). The Board created in Bolling v. Dept. of the Air

Force, 9 M.S.P.R. 335 (1981), a three part test with a “clearly

erroneous” standard to evaluate the bona fides of prior

disciplinary actions which are pending review on appeal but

are being used by an agency to support a subsequent

disciplinary actions. The Bolling test, however, presents two

problems.

First, the Bolling standard ignores the procedural

protections and evidentiary standards established by Congress

in the CSRA. Bolling impermissibly changes the standard of

proof from “preponderance of the evidence” to “clearly

erroneous.”

The Bolling standard further contradicts the CSRA because

it incorrectly places the burden of disproving the agency’s

actions on the employee. Under Bolling, the employee must

prove to the Board that the prior actions taken by the agency

against her were improper. This creates a situation where, if

an employee is subjected to a quick series of progressive

disciplinary actions culminating in a removal in which the

prior actions play a significant role, as in this case, there may

be several on-going grievances or other administrative

appeals at the same time. If the removal is adjudicated first

and in favor of the agency, then the agency may simply move

to have the other pending prior disciplinary actions dismissed

on the basis that the employee is no longer employed by the

agency and, therefore, cannot be afforded the protections of

the negotiated grievance system or CSRA. The employee,

then, would be denied the opportunity provided by statute or

collective bargaining agreement to contest the other dis-

ciplinary actions that the agency used to justify its decision to

remove the employee.

Second, the Bolling “clearly erroneous” standard invites

agency abuse. Contrary to Petitioner’s assertion, the Federal

Circuit’s decision does not provide an incentive for

employees to prolong grievance proceedings. Rather, it

curtails agency abuse of the system created by Bolling

wherein, as in the case at bar, in a relatively short period of

time, the agency imposes a series of disciplinary actions, and

then justifies the removal of the employee based upon those

actions, however de minimus or frivolous, leaving the

employee to prove that the agency’s prior actions were

“clearly erroneous.” The potential ramifications of such a

situation, especially on an employee’s constitutional due

process rights, are enormous, considering that the agency may

subsequently move to have the pending prior disciplinary

actions dismissed as moot because the employee has been

removed.

The Federal Circuit’s decision does not establish a strict

rule prohibiting the consideration of prior disciplinary actions

that are the subject of pending grievances. To the contrary,

the decision is the only result which harmonizes statutory

law, an employee’s constitutional due process protections,

and public policy.

AFGE submits that the Federal Circuit’s decision properly

requires agencies to prove, under the appropriate standard of

proof, the alleged misconduct in prior disciplinary actions

that are pending before considering those actions in imposing

a penalty in a subsequent adverse action.

ARGUMENT

I. THE FEDERAL CIRCUIT’S RULING IS

CONSISTENT WITH THE CIVIL SERVICE

REFORM ACT AND THE DUE PROCESS

PROTECTIONS PROVIDED TO FEDERAL

EMPLOYEES.

Prior to the enactment of the CSRA, the federal civil

service personnel management system was, according to

then-President Carter, a “maze” that “tolerates poor

performance” and “permits abuse of legitimate employee

rights.” H.R.Rep. No. 1403, 95th Cong., 2d Sess. 2 (1978),

reprinted in, 1 House Comm. on Post Office and Civil

Service, 96th Cong., Ist Sess., Legislative History of the Civil

Service Reform Act of 1978, at 636, 639 (1979). The CSRA

was crafted, as a result, to play a dual role in that it provides

federal agencies with the means to more efficiently manage

the discipline and removal of employees, while strengthening

the protection of legitimate employee rights from abusive

agency actions. Cornelius v. Nutt, 472 U.S. 648, 650-2

(1985). The CSRA also established the Board and provided it

with the jurisdiction to enforce the procedural protections

accorded to employees and to conduct hearings in adverse

action appeals. /d.

Federal employees are entitled to certain statutory due

process protections.” Under the CSRA, federal employees

? Federal employees also have a constitutionally protected property

interest in continued employment. Board of Regents v. Roth, 408 U.S.

564 (1972). Prior to taking adverse action against an employee, an agency

must provide due process. Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532 (1985). The most basic process due is notice of the action proposed

and an opportunity for a hearing. Loudermill, 470 U.S. at 542. This Court

has previously recognized that the governmental interests of prompt

removals of unsatisfactory employees and avoidance of administrative

burdens do not outweigh the employee’s due process interests.

must receive advance written notice of the agency’s proposed

discipline, a reasonable time to answer and produce evidence,

representation, and a written decision from the agency with

specific reasons for the action. 5 U.S.C. §§ 7503, 7513. In

the case of removals, the employee is also entitled to an

appeal to the Board. 5 U.S.C. §§ 7513(d), 7701. The due

process protections also include requiring the agency to prove

an adverse action by a preponderance of the evidence,

5 U.S.C. § 7701(c)(1)(B), and to establish for adverse actions

that the agency action is “only for such cause as will promote

the efficiency of the federal service.” 5 U.S.C. § 7513(a).

In some adverse actions, including removals, the agency

uses prior disciplinary actions as a significant or primary

factor to determine the penalty in a subsequent disciplinary

action. If an employee has challenged the prior disciplinary

actions as they occurred, then the adjudication of those

actions may still be pending when the agency takes a

subsequent disciplinary action against the employee. The

Board established in Bolling v. Dept. of the Air Force,

9 M.S.P.R. 335 (1981), a framework to consider prior

disciplinary actions that are pending when adjudicating a

subsequent adverse action.’

Under the Bolling framework, the Board administrative

judge makes a preliminary determination of whether, in

taking the prior disciplinary actions, the agency provided the

employee with written notice of the action and an opportunity

to challenge it, and whether the action was made a matter of

record. Bolling, 9 M.S.P.R. at 340. If the agency observed

these procedures and the employee timely challenged that

Loudermill, 470 U.S. at 542-545. The right to due process is, of course,

constitutionally guaranteed.

* The Board has adjudicated many cases since Bolling that have applied

its framework in considering pending prior disciplinary actions. See e.g.

Crawford v. Dept. of Justice, 45 M.S.P.R. 234, n.1 (1990) (citing cases).

prior action, then the administrative judge defers to the

agency's reliance on the prior actions in the subsequent

discipline, and conducts a limited review which requires the

employee | to show that the prior action was clearly

erroneous.’ /d. If the agency has not provided these

procedures to the employee, then the Board conducts a full,

de novo review of the prior action.” The Board noted that this

limited scope of review balanced agency and employee

interests: the agency could not use clearly erroneous prior

actions to justify a harsher penalty in a subsequent action, and

the employee could not, “relitigate issues that either were, or

could have been, thoroughly litigated previously.” /d. The

Board, however, contradicted the express statutory scheme of

the CSRA in creating the Bolling framework.

* The Board created the “clearly erroneous” standard by using the

standard for judicial review of agency actions set forth by the Court in

Citizens to Protect Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971),

to define the “unreasonable, arbitrary or capricious” standard in the

former Federal Personnel Manual (“FPM”). Bolling, 9 M.S.P.R. at 339.

AFGE submits that the Board’s reliance on Overton Park was misplaced.

Overton Park was determined in the specific context of the scope of

judicial review of agency decisions established by the Administrative

Procedures Act (“APA”), 5 U.S.C. § 706. However, the Board, as it has

itself noted, is not a court. Douglas v. Veterans Administration,

5 M.S.P.R. 280, 298 (1981). The Board, when determining the correct-

ness of an adverse action, should not be employing the judicial standards

of review established for courts. This is especially true when Congress

has directed by statute that the Board should use a particular evidentiary

standard, in this case preponderance of the evidence. See infra. As the

Board stated in Douglas, this limited standard of review would do little

more than serve as a precursor to any subsequent review performed by an

appellate court and ignore the specific standard of proof established by the

CSRA. Douglas, 5 M.S.P.R. at 298.

° If an arbitrator or the Board sets aside the prior action after the Board

has adjudicated a subsequent adverse action relying upon that action,

Board regulations permit the re-opening of the decision and its

reconsideration regarding whether the subsequent agency adverse action

remains appropriate. 5 C.F.R. § 1201.118.

In this regard, the use of the Bolling “clearly erroneous”

standard of review contradicts both the evidentiary standard

of proof and the allocation of the burden of proof established

by the CSRA. The procedural and substantive protections

provided to federal employees by the CSRA place the burden

of proof on the agency and define the requisite amount of

proof. A plain language reading of the CSRA indicates that

the Board, in reviewing the adverse action, sustains the

agency’s decision only if the agency demonstrates by a

preponderance of the evidence that the employee actually

committed the misconduct alleged and that the adverse action

promotes the efficiency of the service. 5 U.S.C. §§ 7513(a),

7701(c)(1)(B); 5 C.F.R. §1201.556(a)(1 (ii); Henry ve Dept.

of the Navy, 902 F.2d 949, 953-4 (Fed. Cir. 1990).° The

Board regulations define “preponderance of the evidence” as

“[t]he degree of relevant evidence that a reasonable person,

considering the record as a whole, would accept as sufficient

to find that a contested fact is more likely to be true than

untrue.” 5 C.F.R. § 1201.56. The agency carries this burden

of proof on the merits of the appeal, while the employee

carries the burden only with respect to jurisdictional and

timeliness of the appeal issues, and affirmative defenses. /d.

The Bolling “clearly erroneous” test, however, ignores this

express statutory “preponderance of the evidence” standard

set forth by Congress in Section 7701(c)(1)(B). Instead of the

agency proving the alleged misconduct in a pending prior

action by a preponderance of the evidence, the Board simply

reviews the agency action to determine whether it is clearly

erroneous. This application of the clearly erroneous standard

to pending prior disciplinary actions, not only contradicts the

CSRA standard, it also reveals an inconsistency in the

Board’s reasoning in Bolling. The clearly erroneous standard

° The CSRA requires a “substantial evidence” standard of proof for

actions based on unacceptable performance or removal from the Senior

Executive Service for failure to be recertified. 5 U.S.C. § 7701(c)(1)(A).

is premised on the reasoning that it would prevent employees

from relitigating issues. Bolling, 9 M.S.P.R. at 340. If that

reasoning is cerrect, then a prior disciplinary action is not

“thoroughly litigated previously” if the action continues to be

the subject of pending proceedings.

In other words, unless the employee has been provided the

full review of the prior disciplinary actions—due process—

that she is entitled to, the agency should not consider those

prior actions in a subsequent adverse action. For example, in

the case at hand, although the first action taken against Ms.

Gregory was reversed by an arbitrator, the remaining two

actions were never adjudicated. Ms. Gregory, therefore,

never “thoroughly litigated” two of the three prior disci-

plinary actions. Thus, she never received the procedural

protections to which she is entitled. At the least, if the Bolling

framework is correct, then, the Board should have conducted

a de novo review of those prior actions and required the

agency to prove by preponderant evidence whether the prior

alleged misconduct occurred and, if so, the reasonableness of

the penalty. The importance of a de novo review of pending

prior actions is compounded when the agency, as it did in this

case, contends that the employee is a recidivist and points to

the unreviewed prior discipline as its basis for the subsequent

adverse action.’

Second, the “clearly erroneous” test also impermissibly

shifts the burden of refuting the agency’s action onto the

employee. Under Bolling, the employee carries the burden of

proof because the Board will discount an agency action only

if it is clearly erroneous. Bolling, 9 M.S.P.R. at 340. The

employee, therefore, is placed in the situation of having to

” In this respect, Petitioner's gross mischaracterization of Respondent

as a “recidivist” based on the three prior disciplinary actions is highly

questionable as Petitioner failed to prove the alleged misconduct in the

first action and hearings on the legitimacy of the second and third actions

were never held.

discredit prior agency discipline, all the while subject to the

higher “clearly erroneous” standard. The shift from agency to

employee, and “preponderance of the evidence” to “clearly

erroneous” eviscerates the fundamental protections statutorily

mandated for employees by the CSRA. Instead of the

employee being considered innocent of the alleged

misconduct until the agency proves otherwise by prepon-

derant evidence, the agency action is presumed to be valid,

unless the employee shows it to be clearly erroneous.”

The clearly erroneous standard in Bolling and its genesis

from the arbitrary/capricious standard set forth in the APA

and Overton Park should be distinguished from the Douglas

ruling, under which the Board determines whether an agency-

selected penalty is arbitrary or capricious. Under Douglas,

the burden of actually proving the offense by preponderant

evidence remains upon the agency, in accordance with

Section 7701(c)(1)(B). Douglas, 5 M.S.P.R. at 299-303.

In Bolling, the Board stated that the “clearly erroneous”

standard would apply to the actual action in personnel

appeals. Bolling, 9 M.S.P.R. at 340. Thus, instead of the

agency proving its prior actions by a preponderance of the

evidence, as required by Section 7701(c)(1)(B), the Board

determines whether the prior actions were “clearly erron-

eous.” See e.g., Ballew v. Dept. of Army, 36 M.S.P.R. 400

(1998); Rewald v. U.S. Postal Service, 34 M.S.P.R. 13

(1987); Hubbard v. U.S. Postal Service, 32 M.S.P.R. 505

(1987); Freeman v. Dept. of Transp., F AA., 20 M.S.P.R. 290

’ (1984). Bolling should be distinguished from Douglas

because the Board, in Douglas, did not change or shift the

burden of proof for proving the action.

* Rare is the occasion when the Board has actually found a prior

disciplinary action to be clearly erroneous. See e.g., Eichner v. U.S.

Postal Service, 83 M.S.P.R. 202, 210 (1999).

Congressional intent to place the burden of proof on the

agency in federal personnel actions is plainly evident in the

language of the CSRA. 5 U.S.C. § 7701(c)(1)(B). Bolling

contravenes that express language and intent by reaching a

result that is contrary to the express provisions of the CSRA

and the protections provided to employees under it.’ In

Gregory, the Federal Circuit correctly required the Board, in

accordance with the CSRA, to sustain agency disciplinary

actions only on the basis of actions established by a

preponderance of the evidence before the Board, rather than

actions the bona fides of which are pending review

elsewhere.'°

II. THE CONSIDERATION OF PRIOR DISCIPLIN-

ARY ACTIONS THAT ARE PENDING INVITES

ABUSIVE ADVERSE ACTIONS.

The consideration of prior disciplinary actions that are the

subject of pending proceedings not only offends an

* The Board should not be accorded any deference to its interpretations

in Bolling as there is no ambiguity in the plain language of the CSRA;

Congress has directly spoken on the issue of which party carries the

burden of proof as to proving the alleged misconduct in federal employee

appeals, and the appropriate standard of proof in such appeals. See,

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 843-846 (1984).

'° The Federal Circuit remanded this portion of the Board’s decision

for abuse of discretion. Gregory, 212 F.3d at 1300. The Federal Circuit

may reverse Board decisions that are arbitrary, capricious, an abuse of

discretion, not in accordance with law, in violation of required procedures,

or unsupported by substantial evidence. 5 U.S.C. § 7703(c). In addition,

the Court may take judicial notice of a fact that is not subject to

reasonable dispute and capable of accurate and ready determination. The

Court may also take judicial notice of proceedings in other forums,

especially if involving the same parties. See e.g., Genentech Inc. v. U.S.

Intern. Trade Com’ n, 122 F.3d 1409 (Fed. Cir. 1997). AFGE submits that

it is certainly well within the Federal Circuit's authority to take judicial

notice of the arbitration decision in the first disciplinary action and

remand the case to the Board. Gregory, 212 F.3d at 1299.

employee’s due process rights, but also invites abusive

adverse actions from an agency. For example, an agency can

freely subject an employee to a series of minor, but

progressive disciplinary actions immediately prior to her

removal in order to support the assessment of that removal

action. The agency’s actions would be protected by the

Board’s Bolling rule, under which prior disciplinary actions

receive only a cursory review under a very limited clearly

erroneous standard; at the removal hearing, the agency would

not carry the burden of proving by a preponderance of the

evidence the occurrence of the prior alleged misconduct. See

supra. After the removal, the agency could move to have any

pending prior disciplinary actions dismissed as the employee

could no longer receive the protections of the CSRA or

collective bargaining agreement due to the removal.'' Such

potential for abuse offends due process and the intent of the

CSRA to create a system with specific procedures and

evidentiary standards to protect employees from baseless

agency actions.

Petitioner ignores this legitimate concern and the violation

of fundamental due process rights, however, and instead

attempts to paint a nightmarish scenario of employees

delaying a removal by grieving prior disciplinary actions.

Pet. at 35. Towards this end, Petitioner cites to common

provisions in collective bargaining agreements, which

rightfully prevent an agency from considering prior discipline

that is stale. Petitioner claims that these provisions, in

conjunction with the Gregory rule preventing the

consideration of pending prior disciplinary actions, would

prevent an agency from ever considering prior discipline.

Pet. at 35-36. These concerns, however, are not supported by

Gregory and are, in any event, outweighed by the legitimate

due process rights of an employee.

'' There is some indication from the Respondent that this has already

occurred in her case. See Opp. Cert. at 12.

The Federal Circuit recently commented on the scope of

the Gregory rule in Blank v. Dept. of the Army, 247 F.3d 1225

(Fed. Cir. 2001). The court declined to extend the Gregory

rule in cases involving complaints of discrimination filed with

the Equal Employment Opportunity Commission (“EEOC”).

The court did not extend Gregory to EEOC complaints

because EEOC appeals often take years to resolve, unlike

arbitrations or Board proceedings. Blank, 247 F.3d at 1230.

The Federal Circuit recognized that the CSRA was partly

enacted “to give agencies greater ability to remove or

discipline expeditiously.” Blank, 247 F.3d at 1230, citing,

Cornelius v. Nutt, 472 U.S. 648, 662 (1985). The court noted

that due to the often-lengthy EEOC process, an agency would

be “effectively prohibited from relying on prior disciplinary

actions.” Blank, 247 F.3d at 1230.

Blank indicates that lengthy EEOC proceedings (to which

the Gregory rule would not apply) should be distinguished

from the arbitration and Board proceedings at issue in

Gregory. Collective bargaining agreements generally require

arbitrations to be resolved expeditiously. In the case of the

National Association of Letter Carriers, the collective

bargaining agreement provides for the possibility of expe-

dited arbitration for disciplinary cases of 14 days suspension

or less which do not involve contract interpretation or for any

other cases that the parties may mutually determine.

Agreement Article 15.4.C. A decision is rendered in less than

one week. Jd. The contract also requires expeditious

scheduling of cases which involve removals or suspensions

for more than 14 days. /d. at 15.4.B. Additionally, the

Board’s internal guidelines mandate that appeals be resolved

within 120 days. MSPB Administrative Judges’ Handbook,

Chapter 1, Section 2.'* In this case, Respondent’s prior

'? The Handbook notes, in pertinent part, “The Board’s policy is to

adjudicate all appeals within 120 days of receipt by the regional office

(RO) except for good cause shown.”

A tn le ci ct RTE ae am -

disciplinary actions most likely would have been adjudicated

if the Petitioner had not sought to delay them. See Opp. Cert.

at 19, n. 12. The potential for delays in prior actions caused

by an employee in order to forestall a subsequent removal is

not implicated-by the facts in this case, the negotiated

arbitration provisions in the collective bargaining pam,

or the Board’s internal guidelines.

In sum, the Gregory rule challenges the Bolling framework

under which an agency can freely subject an employee to an

adverse action without affording that employee due process

for any pending prior disciplinary actions that were used as a

significant factor in determining the subsequent action.

Moreover, Gregory also correctly discredits the Bolling

clearly erroneous standard for reviewing pending prior

actions where a decision has not been issued by the trier of

fact. The CSRA specifically requires an agency to prove the

alleged misconduct by a preponderance of the evidence; the

clearly erroneous standard directly contradicts that standard.

Legitimate employee rights are harmed by decisions such as

Bolling and directly contradict Congress’ intent to protect

employee rights through the procedural protections of statutes

such as the CSRA.

CONCLUSION

Based upon the foregoing reasons, Amicus American

Federation of Government Employees, AFL-CIO, respect-

fully requests that the Court affirm the decision of the United

States Court of Appeals for the Federal Circuit.

Respectfully submitted,