United States Postal Service v. Gregory – Oral Argument – October 09, 2001

Media for United States Postal Service v. Gregory

Audio Transcription for Opinion Announcement – November 13, 2001 in United States Postal Service v. Gregory

del

William H. Rehnquist:

We’ll hear argument now in Number oh oh seven fifty-eight, United States Postal Service versus Maria A Gregory.

Mr. Garre.

[Inaudible]

Gregory G. Garre:

Thank you, Mr. Chief Justice, and may it please the Court.

For decades Federal employers and the Merit Systems Protection Board have engaged in the common sense practice of considering an employee’s prior disciplinary record in deciding what punishment is appropriate for subsequent misconduct.

The settled practice has long been to do so, even when a prior disciplinary action is subject to a pending labor grievance, although in that context, the board permits the employee to collaterally attack the prior actions in proceedings before it.

In this case, the Federal circuit…

overtur-

If there…

Sandra Day O’Connor:

is a collateral attack, the employee says, look, I filed a grievance and it’s pending, what then is the burden of proof by the Government employer?

Gregory G. Garre:

The Government employer bears the burden of proving the action by a preponderance of the evidence.

Sandra Day O’Connor:

But what what is it with regard to the prior offenses, if you will, that have for which grievance procedures have been filed? How is that then addressed?

Gregory G. Garre:

Under the loun- longstanding framework, which is established by the board’s Bolling decision, the employer has to prove the fact of the prior action, and he has to, and the employer has to im- prove that it was preceded by certain procedural protections, first, that the employee received advance notice of the action, second, that the employee had an opportunity to respond to the charges before the supervisor, as well as by a higher authority within the agency, and third, that there was a record…

proceeding…

Sandra Day O’Connor:

mean somebody higher up the ladder in the employing agency?

Gregory G. Garre:

It does, a- and that’s and th- that’s the same type of challenge that is framed in the early stages of the grievance process.

Sandra Day O’Connor:

Well, what if the final action, the decision to terminate the services of the employee what if it had been based on the commission of some prior failure as an employee and the grievance procedure had proceeded and it had been determined that it was invalid?

Gregory G. Garre:

In that circumstance, the board has held that it would be inappropriate to rely on that action to defend the subsequent action.

disciplinary actions…

What happens…

Sandra Day O’Connor:

fact, here three preceding incidents, as I recall, and a grievance was filed on all of them.

Gregory G. Garre:

That’s correct.

disciplinary action.

Stephen G. Breyer:

Justice O’Connor’s example? And let me add one thing, that the prior disciplinary actions are being grieved.

Gregory G. Garre:

Well, first of all, there’s grievances can be pressed before, during, and after appeals before the Merit Systems Protection Board.

the appeal…

Stephen G. Breyer:

the answer to my question?

It…

Stephen G. Breyer:

question was do you, should I repeat it or you have it?

Gregory G. Garre:

i-, My understanding is that in, even when a grievance is proceeding, the board would would proceed with the processing of its…

appeal.

Stephen G. Breyer:

question is take the present situation.

Gregory G. Garre:

I’m sorry.

basis for infal-

Stephen G. Breyer:

to my hypothetical, it can’t happen.

Gregory G. Garre:

The board can’t go to an arbitrator and tell him…

to stop.

Anthony M. Kennedy:

what about the employer? Can the postal department s- d- say , well, you know, this this sh- sh- she’s not an employee here anyway, we’re, you don’t need to continue this? Or is it y- you you leave me with the impression, rightly or wrongly, that this this i- the that this is just at the option of the union.

It’s…

Anthony M. Kennedy:

proceed if it wants or doesn’t have to proceed.

Gregory G. Garre:

That’s a matter covered by the collective bargaining agree- arrangement.

that employers can’t…

Anthony M. Kennedy:

but what we’re trying to establish and I think you would have to concede that there are some instances in which once the employee is terminated, the grievance proceedings as to other matters must stop.

Gregory G. Garre:

That can happen and it happens at,

because of…

Anthony M. Kennedy:

just because it’s the option of the union other than what the union agreed to in the collective bargaining agreement.

Gregory G. Garre:

The arrangement is the the grievances are withdrawn by the union or they’re ri- withdrawn under the arrangement that’s been worked out under the…

collective bargaining agreement.

collective…

Anthony M. Kennedy:

bargaining agreement is silent.

Gregory G. Garre:

That that would be a decision left to the arbitrator under the framework of the negotiated grievance.

can happen. And…

Anthony M. Kennedy:

e- if it’s c- covered by the collective bargaining agreement, there’s no choice in the matter, the grievance is stopped.

Now, this may not be…

Anthony M. Kennedy:

fatal to your case, but if this happens, I think we should confront it.

And Justice Breyer…

Antonin Scalia:

this would happen.

Gregory G. Garre:

That’s right.

Antonin Scalia:

And the union could say, you know, I think you deserved it and and we’re not going to proceed any further.

Gregory G. Garre:

That’s correct.

leaves to the…

Antonin Scalia:

is not an inju- if if that if that’s what it is, is not an injustice peculiar to this arrangements.

Gregory G. Garre:

That’s right.

Mr. Garre?

Ruth Bader Ginsburg:

In civil litigation generally, when there when there’s a proceeding that’s dependent on a prior proceeding that’s on appeal, the standard operating procedure is for the second proceeding to be held at abeyance pending the appeal of the first.

Gregory G. Garre:

It’s it’s very problematic.

estoppel effect. But…

Ruth Bader Ginsburg:

doesn’t prevent it, but it is the standard proceeding to hold the second one in abeyance.

Gregory G. Garre:

But…

Ruth Bader Ginsburg:

So that you don’t have the the anomaly of giving effect to a judgment that has been overturned.

Gregory G. Garre:

Th- There are several problems with the abeyance rule adopted by the Federal circuit, which is essentially the narrow rule which is hypothesized by respondent.

Why if i-

Ruth Bader Ginsburg:

why, if the agency action goes into effect immediately? What what I’m presenting to you is the the thing goes through the agency.

Gregory G. Garre:

Well, first of all, although the employee is paced in, placed in a non-duty, non-pay status when she’s removed by the agency, she continues to fill a permanent slot on the agency’s rolls, and if the abeyance rule is going to require agencies to keep the employee in that position for months, if not years, on end, that’s problematic from the employer’s perspective.

the abeyance…

Ruth Bader Ginsburg:

i- i- would you explain that if to me? Two, why would the why if the firing is is okay, at least until it’s overturned, why couldn’t the the agency fill the vacancy?

Gregory G. Garre:

The the employee is placed under the practice followed by the Postal Service and I believe other employers as well, the employee occupies the full-time slot, and until her removal is affirmed by the board, she continues to fill that slot.

on end. It also…

David H. Souter:

May may I just ask you to get into this problem of months and years? The months and years problem I I understand is is simply a function of of what you claim to be the slow pace of arbitration.

Gregory G. Garre:

I I think they have tried, but the fact is that in the Postal Service, there’s currently a hundred and twenty-six thousand grievances pending in that process, backlogged.

And this is the situation that…

Gregory G. Garre:

Well, this is the situation that exists, and the board isn’t required to hold its appeals in abeyance while that…

procedure is played out.

David H. Souter:

my my poin- I guess my point is that you say this is the situation that exists.

Gregory G. Garre:

Well, first of all, the inherent informality of the grievance and arbitration process is always going to invite delay.

Well, litigation…

David H. Souter:

invites delay.

Gregory G. Garre:

Well, that hasn’t happened, and I don’t think it’s unique to the Postal Service ar- arbitration context.

Mr. Garre, d-

Antonin Scalia:

d- do you think that for purposes of either collateral estoppel or for purposes of whether a criminal court can use a prior conviction in deciding the sentence d- do you think it it’s accurate to analogize the grievance procedure as a prior case pending on appeal? Or would you rather characterize it as a collateral attack…

I think it’s…

Antonin Scalia:

final action by the employer?

Gregory G. Garre:

I I think it’s the latter.

proceeding to…

Antonin Scalia:

and what happens to collateral attacks when you have a final criminal conviction and there is a collateral attack on that criminal conviction, although the conviction itself is final? When a sentencing court has that conviction before it, does it not use that conviction.

Gregory G. Garre:

Absolutely.

Antonin Scalia:

And if the collateral attack is later successful, what is what is the remedy for the…

person who’s been convicted?

Gregory G. Garre:

they can bring it to the attention of the…

court and ask for relief.

Antonin Scalia:

to reopen the proceeding.

Gregory G. Garre:

That’s correct.

And that and that…

Sandra Day O’Connor:

do here? We have a case here where, as I understand it, there were three prior complaints by the employer that resulted in some form of disciplinary action.

Gregory G. Garre:

Well, we think that this Court should decide the question presented, reverse the decision below, and remand for further proceedings,

allow the Federal circuit…

Sandra Day O’Connor:

to the other two grievances…

The other two…

Gregory G. Garre:

grievances were withdrawn by the union when the board affirmed the the removal.

This the Federal circuit…

Antonin Scalia:

remand necessary? What i- i- if we agree with with you on the merits, what what remains to be decided by the Federal circuit?

Gregory G. Garre:

The the issue that that remains open is the question of what effect the grievance that has been set aside should have on the board’s decision affirming the removal.

address…

William H. Rehnquist:

You say if we reverse on the question presented, we should leave it to the Federal circuit to decide whether to direct reopening of the proceedings or to affirm the MSPB?

Gregory G. Garre:

We we th- we th- that’s what we would ask this Court to do.

Ruth Bader Ginsburg:

There’s a disagreement between you and the respondent, is there not, about whether the m- b- the agency, the Postal Service, is bound or whether it’s only the MSPB.

Gregory G. Garre:

Well, we we think that the fairest reading of the court of appeals decision, as it applies both to Federal employers and the Merit Systems Protection Board, the holding of the court is unqualified.

proceedings.

Stephen G. Breyer:

Their their point on that particularly is what were you is, all right the the particular point I think on that is that the the Federal circuit really just said the M the MSPB.

Gregory G. Garre:

Well, first of all, we don’t we don’t think that’s the fairest interpretation of the court of appeals decision.

That’s one of the problems…

Antonin Scalia:

d- does the Government acknowledge that the MSPB can determine that it is arbitrary, capricious, or an abuse of discretion for the agency to decline to reopen a proceeding after a grievance has gone forward and has found one of the convictions on which the dismissal is based to have been invalid?

Gregory G. Garre:

The the the board’s regulations permit the board to reopen any case at any time to reconsider it in light of a grievance which may have proved successful.

to request…

Antonin Scalia:

regulations permit that?

Yes.

Antonin Scalia:

board’s right? Doesn’t the board have to find that the agency action, in refusing to reopen, is arbitrary, capricious, or an abuse of discretion? I mean, the board can say when it will reopen it’s own cases, but but the board can’t tell the agency when the agency must reopen its cases, can it, unless the failure to reopen is arbitrary or capricious?

Gregory G. Garre:

No.

board’s reopening rule.

Antonin Scalia:

talking about ultimate success in the grievance and then then the employee comes back to the agency and says, look, you you goofed.

Well, certainly in that…

Antonin Scalia:

board find that to be an abuse of discretion?

Gregory G. Garre:

That’s the the typical practice is that the employee will go to the board and say, reopen my appeal because this grievance has proved successful.

So, typically…

Ruth Bader Ginsburg:

PB rule, that you if if while the MSPB thing is still going on, one of the grievances e- the MSPB, if the person hasn’t been fired, will reconsider.

Gregory G. Garre:

The the employee may do that, and the board may do that.

Ruth Bader Ginsburg:

But it’s discretionary, isn’t it? That the board doesn’t have to reopen if it doesn’t want to.

Gregory G. Garre:

It is discretionary, and that’s really no different than any other reopening procedure which would exist to to enable a court or other body to reconsider something in light of subsequent evidence.

that.

Antonin Scalia:

on the proposition that they are not final in in in the sense that that that a a judicial determination is final.

Gregory G. Garre:

We think that they are final.

I don’t want to consume your…

Anthony M. Kennedy:

rebuttal time, but there’s one question that that that that still hasn’t been answered for me.

Gregory G. Garre:

We think that the board can take those into account under the Bolling framework, which allows the board to consider the prior disciplinary actions under a procedural perfr- framework which looks to the procedural protections provided in those proceedings and then considers whether those actions…

What would your…

Anthony M. Kennedy:

position be before the Postal Service as to the union’s request to reopen those?

Gregory G. Garre:

To reopen the?

Anthony M. Kennedy:

Those to or to continue those un- una- those pretermitted grievance proceedings.

Gregory G. Garre:

Those arbitrations could go forward.

that per-

Anthony M. Kennedy:

no objection to those going forward?

The arbi- the…

Anthony M. Kennedy:

I thought the union was obje-

wanting…

Anthony M. Kennedy:

to go forward, the and the Postal Service didn’t.

Gregory G. Garre:

Under the memorandum that’s in place, if the respondent’s removal were affirmed by the board, then under the memorandum in place, the union’s practice is to withdraw those agreements under the collective bargaining arrangement.

David H. Souter:

Mr. Garre, apropos of the remand, you mentioned that the respondent had not brought to the board’s attention the fact that the arbitrator had ordered the first disciplinary action vacated.

of the board?

Gregory G. Garre:

bring that to the attention of the board.

Thank you, Mr. Garre.

William H. Rehnquist:

Mr. Brands, we’ll hear from you.

Henk Brands:

Mr. Chief Justice, and may it please the Court.

The MSPB —

William H. Rehnquist:

talking now about review before the MSPB, not before the Federal circuit.

Is that correct?

Henk Brands:

The MSPB has held that whenever the agency comes before the MSPB and relies on aggravating facts, not necessarily the particular charge before the MSPB, but other things, for example, the employee is simply not very good or or something like that, that has to be proven as well by by a preponderance de novo in the MSPB.

I do not…

Antonin Scalia:

even if a grievance is not pending, the board would have to review the prior disciplinary action to be sure that that was supported by a preponderance of the evidence? Surely it surely it doesn’t mean that.

Henk Brands:

Well, Justice Scalia, I think that the burden of proof is always the same.

Antonin Scalia:

Yeah, but the burden of proof is this employee has been convicted of prior disciplinary violations in the past.

Henk Brands:

And…

QED, proven.

Henk Brands:

Certainly when…

But you’re you’re…

Antonin Scalia:

saying that’s not enough.

Henk Brands:

No, Justice Scalia, we’re not saying that.

But that is not…

Antonin Scalia:

same presumption still valid even though the the action is being grieved?

Well, two things…

Antonin Scalia:

not as though it were unilateral employer action without a hearing and procedural guarantees.

That is certainly…

Antonin Scalia:

judgment is final until un- un- and what you’re grieving is employer action, and and that action is final until a grievance overturns it.

Henk Brands:

Justice Scalia, I think that the analogy that the Government would like to draw is to an agency action that is subject to section seven oh six review under the APA, but that is not the right analogy, we respectfully submit.

William H. Rehnquist:

Well, what we’re reviewing here, Mr. Brands, is not the Merit Systems Protection Board’s action, but the action the Federal circuit.

Henk Brands:

Right.

William H. Rehnquist:

As I understand it, the Federal circuit here said this was not in accordance with law.

Henk Brands:

Well, that is true, and perhaps the brevity of the a- of the discussion by the court of appeals can be explained on the ground of of the fact that the Government did not respond to any of respondent’s arguments in the court of appeals.

proof.

William H. Rehnquist:

but you you you say it’s u- not in accordance with law, and then in the same sentence, you say it arbitrarily disregards the burden of proof.

Henk Brands:

And that’s…

William H. Rehnquist:

a- and which I don’t think the Federal circuit did.

Henk Brands:

That is correct, but nevertheless, its judgment, we think, is is right on the money.

William H. Rehnquist:

Now, the the that’s that’s s- standard you say governs the Merit Systems Protection Board?

Henk Brands:

That is correct.

so on and so…

William H. Rehnquist:

the basis for the Federal circuit’s decision here.

Henk Brands:

We think it actually was, Your Honor, because…

under…

William H. Rehnquist:

Where d- where do you find that?

[Inaudible]

Henk Brands:

the petition appendix seven A where the court of appeals said that its rule is necessary because the foundation of the board of the MSPB’s Douglas analysis would otherwise be compromised.

is…

Henk Brands:

And again, we would we would suggest that the del- telegraphic nature of that may may also be blamed on the Government’s conduct of…

the litigation in the court of appeals.

William H. Rehnquist:

blamed on the Government?

Henk Brands:

Well, let let me just explain real quick what we think that the court of appeals meant by that.

Antonin Scalia:

I thought you already conceded in in response to an earlier question of mine that y- that the that the board does not have to establish by a preponderance of the evidence the accuracy of any prior disciplinary conviction.

Henk Brands:

I don’t think I said that, Your Honor.

Antonin Scalia:

Oh, I thought you did.

If you — then why isn’t it true? Suppose there had…

Antonin Scalia:

been no grievance.

Henk Brands:

Well, the the statutory burden, of course, always applies.

Antonin Scalia:

So, your answer is yes.

Henk Brands:

No, it’s not necessarily yes.

Well.

Henk Brands:

I would distinguish between three factual scenarios.

proving…

Antonin Scalia:

to he or she.

Henk Brands:

No, that’s actually not entirely true.

the right to do that.

Anthony M. Kennedy:

still that isn’t this case.

Henk Brands:

[Inaudible]

Anthony M. Kennedy:

No, because this in this case we have a grievance that was not fully determined.

Henk Brands:

That’s pre- that’s precisely correct,

Your Honor. We have in this particular case…

Anthony M. Kennedy:

trouble with the proposition you just stated, but this case is with an with an unadjudicated grievance or or grievance with, that had not been fully determined.

Henk Brands:

Precisely.

Mr. Brands,

Sandra Day O’Connor:

as I understand it, the board, MSPB, applies its so-called Bolling rule.

to meet…

Sandra Day O’Connor:

the statute?

Henk Brands:

We th- we don’t think it is enough in a situation like this situation where the prior is being grieved, and here’s…

why.

Sandra Day O’Connor:

challenge the Bolling rule? Is that something we’ve been asked to review here?

Henk Brands:

Well, the Bolling rule is squarely before the Court.

wrong…

Sandra Day O’Connor:

assert that he- if if the board applies its Bolling standard, that is not enough to s- satisfy the statutory burden of proof?

Henk Brands:

We think it is enough in a situation where the prior has become final on its own steam.

the burden.

Sandra Day O’Connor:

if you view the prior disciplinary action taken by the employer as final, subject only to some kind of collateral attack in a grievance procedure, then it is final unless, at the end of the day, the grievance procedure is successful.

Henk Brands:

That is not how we would characterize it.

Sandra Day O’Connor:

I think not collateral estoppel.

Well, we…

Sandra Day O’Connor:

otherwise final action.

Henk Brands:

We would not view it as a collateral attack.

Justice Ginsburg asked…

Ruth Bader Ginsburg:

Government.

for my suggestion…

Ruth Bader Ginsburg:

that you would hold the second…

proceeding…

Ruth Bader Ginsburg:

in abeyance would apply.

Henk Brands:

Very well.

Antonin Scalia:

I’m I’m guilty.

Henk Brands:

I…

I…

David H. Souter:

when you answer the question, would would you tell us why it would make any difference whether it is whether there’s the collateral proceeding going on, whether there’s a direct attack going on? Why isn’t there a presumption of regularity that attends the Government’s action until it is, in fact, overturned as a result of the arbitration…

process?

Henk Brands:

We think there’s no presumption of regularity because when the action comes for- before the board or before an arbitrator itself, it is not entitled to any reg-

presumption of regularity.

David H. Souter:

the arbitration proceeding.

Henk Brands:

Simply for this reaner- reason, Justice Justice Souter.

the evidence.

David H. Souter:

that’s the but I mean, that gets us back to the question we keep going back and forth on.

or do they have to…

David H. Souter:

prove the existence of the infraction in substance just as if they were proving it as part of the current charge? And it seems odd to me to say that they would have to prove it just as much as if it were part of the current charge.

Henk Brands:

Well, I would I would distinguish between three situations.

Well, I’m not saying that…

David H. Souter:

collateral estoppel applies.

Henk Brands:

That is correct, although that burden will be very easy to discharge in a case where a prior has already become final or, for that matter, where a prinor- prior was never attacked.

David H. Souter:

Okay.

There is one exception…

David H. Souter:

be no presumption of regularity.

Henk Brands:

Presumption of regularity are applied to a Government action that itself is entitled to deference when it is reviewed by a court.

talking about…

David H. Souter:

question.

Henk Brands:

The Government action, if it is taken to the MSPB, is not entitled to any deference at all because the Government bears the burden of proving de novo that what happened actually occurred.

not entitled to…

David H. Souter:

you’re saying is that the that the aggravating fact is subject to exactly the same burden of proof that the specific instance of of later conduct is is is subject to, the the the instance that gets us before the board on appeal anyway.

Henk Brands:

That’s precisely correct, although as I said, in two situations that is a burden of proof that should…

be very easy to discharge. It’s on in that…

Henk Brands:

third situation.

William H. Rehnquist:

Well, but if if you’re talking about judicial proceedings, I don’t think those rules would necessarily carry over to this sort of rather low level administrative proceeding.

Henk Brands:

Your Honor, far be it for me, of course, to to argue that collateral estoppel should apply, but the MSPB, for example, has applied collateral estoppel to prior final arbitral orders, and we don’t necessarily see anything wrong with that.

actually occurred.

William H. Rehnquist:

to say that the prior is rev- reviewed de novo, I’m I’m not sure that that is an entirely accurate statement because it was a prior that was left unchallenged, I take it, at the time.

Henk Brands:

No, Your Honor.

as…

William H. Rehnquist:

your statement then is limited towards the sort of prior which is un- under review.

Henk Brands:

That’s that’s precisely correct.

What is your…

William H. Rehnquist:

what if the employer says there is a prior here, as well as the current conduct, that has never been grieved, n- never been challenged?

Well, in that…

Henk Brands:

situation, it would ordinarily be reasonable for the Government to argue and the MSPB to to agree that it’s reasonable to assume that a preponderance of the evidence exists in such a situation because if the if the employee thought that a preponderance did not exist, then he or she would probably have taken it to the MSPB or to an…

arbitrator. The…

Antonin Scalia:

board has to assume that.

Henk Brands:

Well, the agency is not is not s- the question of whether or not the agency may simply level a charge is not subject to this burden of proof.

before the MSPB.

Antonin Scalia:

any other situation in which the the r- the ref- the re- the review of agency action is conducted on a basis more demanding than the agency action itself?

Your Honor…

Antonin Scalia:

the agency ignored the fact that that that a grievance was pending, you assert that would have been entirely lawful.

Well, that then…

Antonin Scalia:

when it’s on appeal to the Merit Systems Protections Board, you say the Merit Systems Protection Board can reverse the agency because at that stage, suddenly the fact of the prior disciplinary action is not determinative.

I Th- That’s it’s very strange. I don’t know…

Antonin Scalia:

any other instance in administrative law where what the agency does is right, but on appeal it’s wrong.

Henk Brands:

I would not characterize this as an appeal.

However, when the…

Antonin Scalia:

go on.

Henk Brands:

When the agency levels its charges, brings its charges in the first place, it does not have to worry, do we ha- can we sustain the burden of proof.

Antonin Scalia:

Well, of course, it has to worry about the burden of proof.

I don’t think so, Your Honor.

Antonin Scalia:

this evidence is g- is is good evidence before the agency, the mere fact of the prior disciplinary action, but it suddenly becomes bad evidence before the Merit System Protection Board.

Henk Brands:

Well, it’s not bad evidence.

preponderance when it comes in the MS PB…

William H. Rehnquist:

Throughout the admis- the proceedings for the Merit System Protection Board, in the d- initial decision of the administra- it u- the petitioner’s referred to the respondent’s referred to as the appellant.

Henk Brands:

Well, Your Honor, it i- that is true.

William H. Rehnquist:

Where did the Federal circuit get that from?

Henk Brands:

That is simply because before the Federal cir- before the MSPB, the burden is on the Government agency to prove its charges and review is de novo.

is on the Government.

Sandra Day O’Connor:

where is section seventy-seven oh one B in the material before us in the briefs?

Henk Brands:

It’s in the appendix to the petition, page fifty-one, and we refer to it in our our claim rested on the on this on this burden of proof in…

[Inaudible]

Stephen G. Breyer:

a woman who works for an agency is late for the twentieth time.

Henk Brands:

The Government can fire her.

Stephen G. Breyer:

All right.

of course, then…

Stephen G. Breyer:

the as I read the Federal circuit, it says just what you say.

The Gov- the Government…

Stephen G. Breyer:

cannot use them.

Henk Brands:

No, I’m not saying that.

Stephen G. Breyer:

Right,

Henk Brands:

and because you did it nineteen times before, we’re firing you today.

Stephen G. Breyer:

Right.

Henk Brands:

Now, however, when that removal comes to the MSPB,

Stephen G. Breyer:

Mhm…

Henk Brands:

in the ordinary case, those nineteen priors will have become final.

Stephen G. Breyer:

All right.

What we think is…

Stephen G. Breyer:

So so, that’s their approach.

Henk Brands:

It’s not a question of reasonableness, Your Honor.

says.

Stephen G. Breyer:

that that statute seems to be talking about cross referencing B.

That is — Your Honor…

Stephen G. Breyer:

is this piece of paper, which says you were convicted nineteen times before there’re nineteen pieces of paper, okay whether that counts as evidence towards the preponderance to support what they did now.

And…

Stephen G. Breyer:

you could make the argument either way.

Henk Brands:

Respectfully, Your Honor, that is not how the MSPB itself has interpreted section seventy-seven oh one C one B.

any aggravating…

Henk Brands:

circumstance, and in our view, it couldn’t really have been, be any other way.

William H. Rehnquist:

Well, now, Mr. Brands, we’re reviewing the Federal circuit’s decision here, not the MSPB’s decision.

expressing now, into its opinion?

Henk Brands:

Yes, it did, Your Honor.

Whereabouts?

Henk Brands:

what I was referring to when I was referring to that phrase on page seven of the appendix to the petition.

Well, h- how can you tell…

William H. Rehnquist:

How can you tell th- that one cryptic phrase how can you tell that’s what it meant by that?

Henk Brands:

Well, it actually said it twice, Your Honor.

even though…

Antonin Scalia:

proven.

Henk Brands:

That’s actually not correct, Your Honor.

Antonin Scalia:

I- I- I- I- Is that right? I mean I d-

Henk Brands:

Oh, absolutely.

These priors have never gone…

Antonin Scalia:

can say, well, it wasn’t proven, but you know, I think we ought to put this on your record anyway.

Well, the agency adjudicator…

Antonin Scalia:

has to find, by a preponderance of the evidence, that the employee was guilty of the alleged infraction.

Henk Brands:

But the question is whether whether there’s any reason for the MSPB to defer to that, and we submit no.

Antonin Scalia:

That’s fine…

Henk Brands:

prosecutor coming before a trial court.

more deference…

we’re talking — What we’re talking about here is is sentencing…

Antonin Scalia:

then you should say that even when there is no grievance, the board should not take account of the prior of the prior disciplinary…

If I…

you really believe that…

Antonin Scalia:

you would say even if it’s not being grieved.

Henk Brands:

Justice Scalia, I’m I I wouldn’t would, p- I wouldn’t put it right th- that way or precisely that way.

If in that situation…

Ruth Bader Ginsburg:

be- m- before you finish, I’d like you to answer the Government’s assertion that your neat solution, which is, agency, you can fire this persons, but MSPB must abide the grievance.

Henk Brands:

Well, i- i- it’s an argument that’s raised for the first time today here at the lectern.

The burden, of course, is…

Ruth Bader Ginsburg:

it does weaken your argument that the Government serves its purpose.

Henk Brands:

Well, I don’t think it quite weakens our argument, Your Honor, because we’re talking about letter carriers in this particular case, for example.

why the government…

Anthony M. Kennedy:

briefs correct in telling us there are a hundred and twenty-six thousand pending grievances in the postal system?

Henk Brands:

The short answer is no, if the allegation is that those are disciplinary grievances.

Thank you, Mr. Brands.

William H. Rehnquist:

Mr. Garre, you have two minutes remaining.

Gregory G. Garre:

The Federal circuit ruling in this case is not based in any way on the burden of proof applied in board proceedings.

William H. Rehnquist:

Thank you, Mr. Garre.