8
Opinion of the Court
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. See Reply Brief for Petitioner 6-7. 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.
Nor is independent review by the Board contrary to any law. The Federal Circuit cited no provision of the CSRA or any other statute to justify its new rule. Id., at 1299-1300. At oral argument in this Court, respondent's counsel pointed to the Federal Circuit's statement that, if pending grievances were later overturned in arbitration, "the foundation of the Board's Douglas analysis would be compromised." Tr. of Oral Arg. 49; 212 F. 3d, at 1300 (citing Douglas v. Veterans Admin., 5 M. S. P. B. 313 (1981)). The Board's Douglas decision set out a general framework for reviewing agency disciplinary actions. Because Douglas at one point specifically discussed 5 U. S. C. § 7701(c)(1)(B), the CSRA provision placing the burden of proof on the employing agency to justify its disciplinary action, counsel claimed, the Federal Circuit must have thought the Board's policy violates that section. Tr. of Oral Arg. 49. We do not read the Federal Circuit's citation of Douglas as an implicit reference to § 7701(c)(1)(B), particularly given that the Federal Circuit's opinion nowhere
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