14
Ginsburg, J., concurring in judgment
For these reasons, I agree with the Court's decision to vacate the judgment of the Federal Circuit and remand for further proceedings.6
Justice Ginsburg, concurring in the judgment. Although I join the Court's judgment, I do so on grounds not stated in the Court's opinion. I note first that under Bolling v. Department of Air Force, the Board's review of prior disciplinary actions pending in negotiated grievance proceedings requires, in cases like this one, only that the Board determine whether an agency action was "clearly erroneous." 8 M. S. P. B. 658, 660 (1981). This summary and highly deferential standard is arguably inconsistent with the statutory requirement that the Board sustain a decision of an agency "only if . . . [it] is supported by a preponderance of the evidence." 5 U. S. C. § 7701(c)(1)(B). The Court maintains that the adequacy of Bolling review to meet
an argument, like the Federal Circuit's holding below, rests on the erroneous premise that the CSRA inextricably ties together the Board's review process and collectively bargained grievance proceedings. To be sure, the Board has chosen to link its review to collectively bargained grievance proceedings—at least to some extent—by adopting a policy of not relying upon disciplinary actions that have been reversed through grievance proceedings. Cf. Jones v. Department of Air Force, 24 MSPR 429, 430-431 (1984). But the Board is not required to do so. Neither Justice Ginsburg nor the Federal Circuit cites any statutory provision mandating that the Board must take this step. The CSRA simply establishes no link between the Board's review process, which is designed to protect an employee's statutory rights, and grievance proceedings, which adjudicate rights secured through collective-bargaining agreements. As the Court points out: "Independent Board review of disciplinary actions . . . may at times result in the Board reaching a different conclusion than the arbitrator." Ante, at 10.
6 Given the Board's stated policy of not relying upon disciplinary actions that have already been overturned in grievance proceedings at the time of Board review, see n. 5, supra, I agree that a remand is necessary for the Federal Circuit to consider the relevance of the fact that one of respondent's prior disciplinary actions had already been reversed when the Board finalized its review of her case.
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