6
Opinion of the Court
tions met Bolling's three conditions, the ALJ concluded that there was no clear evidence of error. App. to Pet. for Cert. A-37.
Respondent petitioned the Board for review of the ALJ's decision. While this appeal was pending, an arbitrator resolved respondent's first grievance (relating to the April 7 incident) in her favor, and ordered that the letter of warning be expunged. App. 3-16. Respondent did not advise the Board of that ruling. The Board then denied her request for review of the ALJ's determination. App. to Pet. for Cert. A-9 to A-10.
Respondent petitioned for review of the Board's decision in the United States Court of Appeals for the Federal Circuit. 5 U. S. C. § 7703(a). That court affirmed the Board's decision to uphold the ALJ's factual findings with respect to the September 13 incident. 212 F. 3d, at 1299. Taking judicial notice of the fact that one of the three disciplinary actions underlying respondent's termination had been overturned in arbitration, and noting that respondent's two remaining grievances were still pending, it reversed the Board's determination that the penalty was reasonable. Ibid. While recognizing that disciplinary history is an "important factor" in assessing any penalty, id., at 1300, the Federal Circuit held that "prior disciplinary actions that are subject to ongoing proceedings may not be used to support" a penalty's reasonableness, id., at 1298. It therefore vacated the Board's decision in part and remanded for further proceedings. Id., at 1300. We granted certiorari, 531 U. S. 1143 (2001).
II
The Federal Circuit's statutory review of the substance of Board decisions is limited to determining whether they are unsupported by substantial evidence or are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U. S. C. § 7703(c). Like its counterpart in the Administrative Procedure Act, 5 U. S. C. § 706(2), the arbi-
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