Cite as: 534 U. S. 1 (2001)
Ginsburg, J., concurring in judgment
§ 7701(c)(1)(B)'s preponderance of the evidence standard is a question "not before us." Ante, at 7, 10. In light of the unsettled issue, however, I would place no reliance upon the Board's "independent review" of prior discipline, see ante, at 7, 8, in this case. Nevertheless, I do not resist the Court's remand order for the reasons set out below.
MSPB regulations allow the Board to reopen an appeal and reconsider its decision "at any time." 5 CFR § 1201.118 (2001) ("The Board may reopen an appeal and reconsider a decision of [an administrative judge] on its own motion at any time, regardless of any other provisions of this part."). There is every reason to believe that the Board would reopen to reconsider a decision that credited a prior disciplinary action later overturned in arbitration. See Jones v. Department of Air Force, 24 MSPR 429, 431 (1984) (suspension "re-versed by grievance . . . was effectively cancelled and thus should not be considered in determining a reasonable penalty for the current charge").1 Notably, the Postal Service agrees that the Board may invoke its provision for reopening "in the event that the employee's prior disciplinary record has been revised as the result of a successful grievance." Brief for Petitioner 28; see also Tr. of Oral Arg. 22 (counsel for the Postal Service confirmed Service's recognition that "the [B]oard's regulations permit the [B]oard to reopen any case at any time to reconsider it in light of a grievance which may have proved successful").
Indeed, it might well be "arbitrary and capricious" in such a situation for the Board to disregard the employee's revised record and refuse to reopen. Cf. 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4433, p. 311 (1981) (a "judgment based upon the preclusive effects of [a prior] judgment should not stand if the [prior] judgment is
1 The Board thus comprehends the two schemes—its own review, and arbitration under the bargained-for grievance procedure—as harmonious and not, as Justice Thomas does, ante, at 13 (concurring opinion), as entirely unrelated to each other.
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