12
Thomas, J., concurring
ness" inherent in the Board's consideration of prior disciplinary actions subject to pending grievances, but also is inconsistent with the agency's statutory burden to show that its decision is supported by a "preponderance of the evidence." See Brief for Respondent 34-37. Properly disposing of this case requires that we address these arguments.2
This is not a difficult task because the Bolling framework provides federal employees with more than adequate procedural safeguards. Title 5 U. S. C. § 7503(b), for instance, sets forth the basic procedural protections to which employees receiving minor discipline are entitled pursuant to the Civil Service Reform Act of 1978 (CSRA).3 Conspicuously absent from the statutory provision is any opportunity to appeal a minor disciplinary action to the Board. Thus, as petitioner points out, "it can hardly be said that the Bolling framework for collateral review of prior discipline conflicts with the CSRA, when Congress chose not to provide for any [Board] review of minor disciplinary actions." See Reply Brief for Petitioner 12-13 (emphasis in original).
Respondent's argument that the Bolling framework conflicts with the "preponderance of the evidence" standard set forth in 5 U. S. C. § 7701(c)(1)(B) is also unavailing. The logical consequence of respondent's position is that the Board
2 The Court accurately notes that respondent's brief in the Federal Circuit merely argued that the Board erred by relying upon prior disciplinary actions and nowhere mentioned the Bolling framework. See ante, at 7. Petitioner, however, has put the Bolling framework squarely into play by relying upon it to support its contention that the Board's practice of considering prior disciplinary actions is not an abuse of discretion. Given that petitioner, in defending the Board's practice, raises the Bolling framework for the first time in this Court, respondent surely has not waived her right to argue that the protections provided by the Bolling framework are inadequate to save the practice invalidated by the Federal Circuit.
3 This statutory provision applies to suspensions for 14 days or less. 5 U. S. C. § 7503(a). Respondent's prior disciplinary actions pending in grievance proceedings fall into this category.
Page: Index Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 NextLast modified: October 4, 2007