       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

               RICHARD A. KOESTER,
                    Petitioner

                            v.

          UNITED STATES PARK POLICE,
                    Respondent
              ______________________

                       2017-2613
                 ______________________

    Petition for review of an arbitrator’s decision in No.
16-53707-A by James M. Harkless.
                  ______________________

                Decided: January 3, 2019
                 ______________________

    JOHN SCOTT HAGOOD, JR., Hannon Law Group, Wash-
ington, DC, argued for petitioner.

    IGOR HELMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA PREHEIM,
JOSEPH H. HUNT.
                 ______________________

Before WALLACH, CLEVENGER, and STOLL, Circuit Judges.
2                     KOESTER v. UNITED STATES PARK POLICE




CLEVENGER, Circuit Judge.
    A former police officer with the United States Park
Police appeals from an arbitrator’s decision upholding the
Park Police’s decision to remove him from the Federal
Service. Because the arbitrator erred when he ignored
certain evidence of alleged mitigating circumstances
surrounding the incident that led to the officer’s removal,
we vacate and remand.
                       BACKGROUND
                              I
    Richard Koester became an officer with the United
States Park Police in 1996. He was assigned to patrol
Liberty and Ellis Islands through the New York Field
Office, which includes the Statue of Liberty – a popular
tourist destination, national icon, and top terrorist target.
Officers assigned to work at the Statue of Liberty may be
the first and last line of defense against those who at-
tempt to damage the landmark or injure others, which is
why those officers are issued weapons, ammunition, and
badges and their state of mind is considered of paramount
importance.
     Mr. Koester had a checkered history during his tenure
with the Park Police. In 2001, he was arrested by his
fellow officers and charged with several felony offenses.
Although the charges were ultimately dismissed and Mr.
Koester was ordered back to work, he took a significant
period of leave from the Federal Service. He returned to
the Park Police in February 2009 and was stationed in
Washington, D.C., rather than New York. Thereafter,
Mr. Koester asserts that he was bullied, mocked, and
generally excluded by his fellow officers. His wife di-
vorced him around that time and Mr. Koester, admittedly
not responding well to the difficult life circumstances,
started drinking. In July 2009, he made inappropriate
radio transmissions off-duty after drinking, was placed on
KOESTER v. UNITED STATES PARK POLICE                      3



light duty and charged by the Park Police for the inappro-
priate conduct. He ultimately served a two-day suspen-
sion for that transgression.
    Mr. Koester requested to be transferred back to the
New York Field Office, and that request was granted in
January 2011. He was written up several times by the
Park Police after he returned to New York, including for
permitting a breach of security in July 2011, abandoning
his post without leave to use the bathroom and print
timesheets in December 2011, and watching television in
his patrol car while on duty in March 2012.
    Mr. Koester then experienced a traumatic event in
October 2012. He and another officer reported for duty at
the Statue of Liberty on the day that Hurricane Sandy
struck New York City. The power went out in the build-
ing, they were trapped inside with water rising up to their
chests, and they feared they might not survive. They
were relieved when someone rescued them.
     About one year later, from October 28–29, 2013, Mr.
Koester served his last twelve-hour overnight shift with
the Park Police. The morning before his shift, Mr.
Koester’s second wife had an interview with immigration
officials to support her application for a green card. The
interview did not go well, his wife was distraught, and
Mr. Koester had trouble sleeping before his shift. Mr.
Koester decided to go to work anyway, brought a half-pint
bottle of vodka in his work bag, and consumed some of it
during his shift. Video evidence and witness testimony
demonstrates that he showed signs of intoxication while
attempting to perform routine tasks.
    After Mr. Koester made incoherent and concerning
radio transmissions, a supervisor approached him and
observed his inebriated state. Mr. Koester admitted he
had been drinking but refused to take a breathalyzer test.
His supervisor took his weapon, ammunition, and badge,
suspended him, and drove him home. At that time, a
4                     KOESTER v. UNITED STATES PARK POLICE




fellow officer called the Employee Assistance Program on
Mr. Koester’s behalf to get him help.
    Mr. Koester was placed on administrative leave. Dur-
ing that time, he attended the maximum six sessions
offered through the Employee Assistance Program, sought
counseling from a psychologist, and attended various
meetings directed at helping him overcome his drinking
problem.
                            II
    In August 2014, the Park Police proposed removing
Mr. Koester from the Federal Service for both consuming
alcohol while on duty and being impaired while on duty
due to alcohol consumption. The Acting Assistant Chief of
the Park Police, Patrick Smith, sustained both charges
and accepted the proposed penalty following an in-person
interview with Mr. Koester. In assessing the appropriate
penalty, Assistant Chief Smith relied on the twelve fac-
tors recited in Douglas v. Veterans Administration,
5 M.S.P.B. 313 (1981), which guide an agency’s penalty
decision for employee misconduct. In doing so, he consid-
ered Mr. Koester’s argument that removal was excessive
in light of his great potential for rehabilitation, his
marked progress in overcoming alcoholism, and evidence
of mitigating circumstances. That mitigating evidence
included unusual job tension stemming from the 2001
criminal accusations, his divorce from his first wife, and
the immigration-related issues that were complicating his
relationship with his second wife.
    Assistant Chief Smith placed significant weight on
the seriousness of drinking alcohol to the point of impair-
ment while on duty as a law enforcement officer at one of
the world’s top terrorist targets. He also gave weight to
the fact that Mr. Koester had previously been reprimand-
ed for misconduct, including his two-day suspension in
2011 for inappropriate radio transmissions and his two-
day suspension in 2014 for abandoning his post without
KOESTER v. UNITED STATES PARK POLICE                        5



leave, and he appeared not to have learned from his
earlier mistakes. Assistant Chief Smith said he did not
believe Mr. Koester was a good candidate for rehabilita-
tion because the seriousness of his misconduct seemed
only to be escalating rather than regressing. Finally, he
rejected Mr. Koester’s mitigating evidence, including his
treatment for alcoholism, because it did not “override the
seriousness of [his] misconduct or restore . . . confidence
that [he could] perform the duties of a police officer.” J.A.
61.
     Mr. Koester sought arbitration with respect to the
agency’s decision through the Fraternal Order of Police,
United States Park Police Labor Committee (“Union”),
and the arbitrator sustained both charges and affirmed
the removal penalty. The Union argued that the agency
failed to properly weigh the Douglas factors in determin-
ing the appropriate penalty and ignored his potential for
rehabilitation. To aid its argument, it presented new
evidence of mitigating circumstances that were not before
the agency, including that he was mocked and bullied by
his fellow officers, that he continued to suffer from the
emotional toll of his Hurricane Sandy experience, and
that he must be given a chance to demonstrate his im-
provement following his participation in the Employee
Assistance Program. The arbitrator refused to consider
the arguments stemming from that evidence in his analy-
sis of the Douglas factors because the Union never gave
the agency an opportunity to consider those potential
mitigating circumstances. The arbitrator also said that
the evidence relating to Mr. Koester’s wife’s poor immi-
gration interview was not brought before the agency and
thus refused to consider that evidence as well. Finally,
the Union argued that it was error for the agency to
consider Mr. Koester’s charge for abandoning his post
without leave in 2011 because he was not punished for
that incident until 2014 after he was placed on adminis-
trative leave for on-duty intoxication. The arbitrator
6                     KOESTER v. UNITED STATES PARK POLICE




agreed that the agency erred, but decided that the error
was harmless given the severity of Mr. Koester’s miscon-
duct.
    Mr. Koester now appeals. We have jurisdiction to de-
cide his appeal pursuant to 5 U.S.C. § 7121(f) and
28 U.S.C. § 1295(a)(9).
                        DISCUSSION
     We review arbitration decisions “in the same manner
and under the same conditions as if the matter had been
decided by the [Merit Systems Protection] Board.”
5 U.S.C. § 7121(f). We may thus only set aside agency
actions, findings, or conclusions that we determine are:
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” Id. § 7703(c).
    An agency’s penalty for employee misconduct is with-
in its sound discretion. LaChance v. Devall, 178 F.3d
1246, 1251 (Fed. Cir. 1999). We defer to the agency’s
penalty determination unless it is “so harsh and uncon-
scionably disproportionate to the offense that it amounts
to an abuse of discretion.” Allen v. U.S. Postal Serv., 466
F.3d 1065, 1071 (Fed. Cir. 2006).
     Mr. Koester does not challenge on appeal the charges
for consuming alcohol while on duty and for being im-
paired while on duty due to alcohol consumption. He
instead attacks the Park Police’s removal penalty. Specif-
ically, Mr. Koester makes four arguments aimed at reduc-
ing the penalty the Park Police assessed. First, he argues
that the arbitrator abused his discretion when he failed to
consider all the evidence of mitigating circumstances.
Second, he contends that the arbitrator abused his discre-
tion when he failed to independently assess and appropri-
ately weigh the Douglas factors. Third, he asserts that
KOESTER v. UNITED STATES PARK POLICE                       7



the arbitrator erred when he rejected the argument that
the terms of the collective bargaining agreement between
the Union and the Park Police required the agency to
allow him to demonstrate improvement before removal.
Last, he argues that the arbitrator erred when he treated
the Park Police’s reliance on his 2014 punishment for the
absence without leave incident as harmless error. We
address each of his arguments in turn.
                             I
     Mr. Koester argues that the arbitrator abused his dis-
cretion when he ignored new evidence that was not pre-
sented to the agency because our case law requires
arbitrators to consider all evidence when independently
assessing the reasonableness of a penalty. Mr. Koester
contends that the arbitrator did not consider his ability to
demonstrate improvement after completing the Employee
Assistance Program, the impact of Hurricane Sandy on
his state of mind, the environment of mocking and bully-
ing, and the effect of his wife’s poor immigration inter-
view. The Park Police responds that the arbitrator heard
all the evidence, considered it, and simply afforded it less
weight than Mr. Koester would desire.
    Arbitrators cannot wholly disregard new evidence
when assessing the reasonableness of an agency’s penalty.
In Norris v. Securities & Exchange Commission, the
arbitrator ignored all the facts and circumstances that
were not before the agency at the time of its decision. 675
F.3d 1349, 1352 (Fed. Cir. 2012). We held “that where
new evidence in mitigation of the penalty imposed is
presented . . . to the arbitrator[], the evidence must be
considered in determining whether the agency’s imposed
penalty was reasonable.” Id. at 1357. We reasoned that
the arbitrator cannot ignore evidence bearing on the
reasonableness of the penalty merely because it was not
presented to the agency, given that the arbitrator is
8                     KOESTER v. UNITED STATES PARK POLICE




required to assess independently the Douglas factors. Id.
at 1356.
    In this case, the arbitrator abused his discretion
when, during his independent assessment of the Douglas
factors, he refused to consider evidence that he believed
was never presented to the agency. He gave no weight to
Mr. Koester’s ability to demonstrate improvement after
completing the Employee Assistance Program, the impact
of Hurricane Sandy, the unfriendly work environment,
and the effect of Mr. Koester’s wife’s poor immigration
interview because the Union did not refer to that evidence
at the agency level in its response to the Park Police’s
proposed removal. That rationale for disregarding evi-
dence is clearly contrary to our decision in Norris. See
Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572
U.S. 559, 563 n.2 (2014) (indicating that taking an erro-
neous view of the law necessarily constitutes an abuse of
discretion). And the arbitrator’s erroneous view of the
law is not harmless. He gave no alternative explanation
for discounting some of that evidence even if it were in the
mix, and we therefore cannot say without impermissibly
reweighing the evidence ourselves whether that new body
of evidence would alter the arbitrator’s evaluation of the
reasonableness of the agency’s removal penalty.
                             II
    Mr. Koester challenges the arbitrator’s Douglas factor
analysis. He argues that the arbitrator did not fulfill his
duty to independently assess every Douglas factor to
ensure that the Park Police’s removal penalty is reasona-
ble and did not appropriately weigh the evidence with
respect to his potential for rehabilitation and the presence
of mitigating circumstances. Specifically, Mr. Koester
contends that the Park Police and the arbitrator held his
alcoholism against him by assuming he would relapse,
that they failed to account for medical treatment he was
receiving, that they ignored his expressions of remorse,
KOESTER v. UNITED STATES PARK POLICE                      9



and that the arbitrator did not give sufficient considera-
tion to the fact that he was a recovering alcoholic who
demonstrated rehabilitative promise. He argues that the
evidence, including the 2001 accusations, the hostile work
environment, the traumatic Hurricane Sandy experience,
and his wife’s poor immigration interview, strongly sup-
ports a different conclusion.
     The Park Police disagrees. It counters that the arbi-
trator properly and independently considered the relevant
Douglas factors. It argues that the evidence supports
concluding that Mr. Koester is a poor candidate for reha-
bilitation, that he has not learned from his previous
mistakes despite his treatment, and that his remorse only
came well after the time of the incident. Furthermore,
the Park Police argues that the evidence Mr. Koester
points to in support of a different conclusion is unhelpful
because it is either too old and attenuated from the drink-
ing incident or it is an inappropriate justification for
consuming alcohol while on duty to the point of intoxica-
tion.
    Mr. Koester’s argument is unpersuasive. The arbitra-
tor is not required to consider each and every Douglas
factor, but only those that are relevant. Malloy v. U.S.
Postal Serv., 578 F.3d 1351, 1357 & n.2 (Fed. Cir. 2009).
There is no reason to believe that the arbitrator failed to
consider or independently assess any relevant Douglas
factor. Moreover, the Park Police’s removal penalty is not
so harsh and grossly or unconsciously disproportionate to
the offense that it amounts to an abuse of discretion for
the arbitrator to have considered it reasonable. See
Webster v. Dep’t of the Army, 911 F.2d 679, 685–86 (Fed.
Cir. 1990) (reciting the highly deferential standard under
which we review penalties sustained by the Merit Sys-
tems Protection Board or an arbitrator). The arbitrator
heard Mr. Koester’s evidence that he was a recovering
alcoholic who has received significant treatment, inde-
pendently assessed the rehabilitative evidence, and
10                    KOESTER v. UNITED STATES PARK POLICE




reasonably concluded that it did not outweigh the “ex-
tremely grave” nature of Mr. Koester’s misconduct in light
of his prior disciplinary record. J.A. 53. Although the
arbitrator erred when he failed to consider certain evi-
dence of potential mitigating circumstances, he did not
abuse his discretion in his consideration of other evidence
in the record. It was not arbitrary and capricious to
discount the impact of the 2001 allegations as too remote
in time or to discount other evidence as incredible.
                            III
    Mr. Koester contends that the arbitrator erred when
he misconstrued the requirements of the collective bar-
gaining agreement between the Union and the Park
Police. He argues that, under the terms of that agree-
ment, once the Park Police extended assistance toward
rehabilitation through the Employee Assistance Program,
it was required to allow him to demonstrate improvement
before removal. The Park Police counters that the arbi-
trator interpreted the agreement correctly because it only
requires the Park Police to provide access to the Employee
Assistance Program, not repeated chances to demonstrate
improvement following misconduct.
    Mr. Koester’s interpretation of the agreement lacks
merit. The collective bargaining agreement states “[i]t is
agreed that an Officer will be extended assistance toward
rehabilitation through [the Employee Assistance Pro-
gram]. However, it is understood that if the Officer is
unable to improve his/her job performance to an accepta-
ble level, appropriate action, not to preclude removal, may
be taken.” J.A. 67. Although the agreement requires the
Park Police to maintain and provide access to the Em-
ployee Assistance Program, it nowhere requires the Park
Police to give officers an opportunity to demonstrate
improvement before removing them.
KOESTER v. UNITED STATES PARK POLICE                      11



                            IV
    Mr. Koester’s final argument is that the arbitrator
erred when he treated as harmless the agency’s imper-
missible consideration of his absence without leave charge
as an aggravating factor. He states that the Park Police
were not permitted to consider the absence without leave
charge in its Douglas factor analysis because disciplinary
action was not taken with respect to that misconduct until
after he was placed on administrative leave for consuming
alcohol while on duty to the point of inebriation. Because
his previous misconduct played a critical role in the Park
Police’s removal decision, Mr. Koester argues that the
arbitrator erred in treating the Park Police’s reliance on
the absence without leave charge as harmless.
    The Park Police responds that it was permitted to rely
on the absence without leave charge despite the lack of
disciplinary action at the time of Mr. Koester’s alcohol
consumption and inebriation charges. It relies on United
States Postal Service v. Gregory, 534 U.S. 1 (2001), for the
proposition that an agency can use earlier disciplinary
violations in a later disciplinary proceeding even if those
earlier violations remain unresolved. Finally, the Park
Police argues that, even if it did err, it was not arbitrary
and capricious for the arbitrator to treat that error as
harmless in light of the severity of Mr. Koester’s miscon-
duct.
    We agree that the arbitrator’s decision to treat any
perceived error as harmless was not arbitrary and capri-
cious. Even though the Supreme Court’s decision in
Gregory does not answer whether the Park Police erred in
this case, because there the Court presumed some disci-
plinary action had been taken before the currently
charged misconduct, albeit subject to later change, we
need not decide whether the Park Police erred. Id. at 7–
10. The arbitrator independently assessed the evidence
and maintained that the removal penalty was justified in
12                    KOESTER v. UNITED STATES PARK POLICE




light of the extreme nature of Mr. Koester’s misconduct
and other aggravating factors, such as his previous inap-
propriate radio transmission charge. We see no reason to
disturb the arbitrator’s discretionary conclusion that any
perceived agency error was harmless.
                       CONCLUSION
     For the reasons stated above, we vacate the arbitra-
tor’s decision upholding as reasonable the Park Police’s
removal penalty and remand for further proceedings
consistent with this Opinion. On remand, the arbitrator
should independently assess the relevant Douglas factors
taking into account all the evidence presented, including
purported new evidence, now of record.
                 VACATED AND REMANDED
                          COSTS
     No costs.
