2
Syllabus
Held:
1. The Board may review independently prior disciplinary actions pending in grievance proceedings when reviewing termination and other serious disciplinary actions. The Federal Circuit reviews a Board decision's substance under the extremely narrow arbitrary and capricious standard, which allows the Board wide latitude in fulfilling its obligation to review agency disciplinary actions. The role of judicial review is only to ascertain if the Board has met the CSRA's minimum standards. There is nothing arbitrary about the Board's decision to independently review prior violations. Neither the Federal Circuit nor respondent has suggested that the Board has applied its policy inconsistently or that it lacks reasons for its approach. Nor is independent Board review contrary to any law. The Federal Circuit's reference to Douglas v. Veterans Admin., 5 M. S. P. B. 313, which sets out the framework for reviewing disciplinary actions, is a way of describing the Board's review process, not, as respondent suggests, an indication that the Board violated § 7701(c)(1)(B). More important, any suggestion that independent review by the Board violates that section's preponderance of the evidence standard would be incorrect. The Board has its own mechanism for allowing agencies to meet their statutory burden of justifying all violations supporting a penalty. Insofar as Bolling review is adequate, an agency may meet its burden by prevailing either in grievance or before the Board. Independent review also does not violate the CSRA's general statutory scheme, which allows Board review of serious, but not minor, disciplinary actions. Where a termination is based on a series of disciplinary actions, some of which are minor, the Board's authority to review the termination must also include the authority to review each of the prior disciplinary actions to establish the penalty's reasonableness. Any effects of such review on pending grievance procedures result from the CSRA's parallel review structures. If the Board's independent review procedure is adequate, the review that an employee receives is fair. Although that procedure's fairness is not before this Court, a presumption of regularity attaches to Government agencies' actions, and some deference to agency disciplinary actions is appropriate. Pp. 6-10.
2. Because the Board does not rely upon disciplinary actions that were overturned in grievance proceedings at the time of its review, a remand to the Federal Circuit is necessary to determine the effect that the reversal of one of respondent's disciplinary actions had on her termination. Pp. 10-11.
212 F. 3d 1296, vacated and remanded.
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