       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 HANNAH HARDING,
                     Petitioner,

                           v.

        UNITED STATES NAVAL ACADEMY,
                   Respondent.
              ______________________

                      2013-3092
                ______________________

   Petition for review of an arbitrator's decision in No.
120516-55631-7 by Sean J. Rogers.
                 ______________________

                Decided: June 26, 2014
                ______________________

    THOMAS J. GAGLIARDO, AFGE Local 1923 Legal Rep-
resentation Fund, of Baltimore, Maryland, argued for
petitioner. With him on the brief were SHANNON C. LEARY
and RENN C. FOWLER, The Law Offices of Gary M. Gilbert
& Associates, of Silver Spring, Maryland.

    DOMENIQUE KIRCHNER, Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent. With her on the brief were STUART F.
DELERY, Assistant Attorney General, BRYANT G. SNEE,
2                  HARDING   v. UNITED STATES NAVAL ACADEMY



Acting Director, and KENNETH M. DINTZER, Acting Deputy
Director.
                  ______________________

    Before TARANTO, BRYSON, and HUGHES, Circuit Judges.
BRYSON, Circuit Judge.
     Hannah Harding petitions for review of an arbitra-
tor’s decision upholding her removal as an employee of
the United States Naval Academy (“USNA”). She raises a
number of claims of legal error, all of which we find
meritless. As to the choice of removal as a penalty, our
limited authority to review penalty determinations in
federal personnel cases compels us to affirm the arbitra-
tor’s decision.
                              I
    Ms. Harding served for 24 years as a cook in the Mid-
shipmen Food Services Division at the USNA. On Janu-
ary 12, 2012, while off duty, she drove her personal
vehicle onto the Naval Support Activity (“NSA”) facility in
Annapolis, Maryland, near the Naval Academy. She was
on the facility grounds in order to obtain a key for a
banquet room that she was planning to use that evening.
When Ms. Harding picked up the key, an NSA employee
noticed that she seemed to be acting strangely and noti-
fied the police.
    Based on that tip, a police officer assigned to the NSA
stopped Ms. Harding’s vehicle and determined that she
was intoxicated. The officer asked her if she had taken
any drugs, to which she replied that she had “snorted
some coke” the night before. She was later charged with,
and pleaded guilty to, the offense of driving or attempting
to drive while impaired by drugs or alcohol.
   The following month, a USNA supervisor sent Ms.
Harding a notice of proposed removal. The notice advised
her that the USNA proposed to remove her from her
HARDING   v. UNITED STATES NAVAL ACADEMY                  3



position “for being under the influence of illegal drugs and
alcohol while off-duty on Government property.” The
notice explained that the reason for the proposed removal
was that she was under the influence of drugs and alcohol
while on NSA grounds and had admitted the illegal use of
cocaine to the arresting officer.
    After Ms. Harding responded to the notice, the
USNA’s Commandant of Midshipmen issued a notice of
decision advising her that she would be removed from her
position as of March 16, 2012. The Commandant found
the specific charges in the notice of proposed removal to
be supported by the evidence and determined that her
actions had “adversely affected the efficiency of the ser-
vice, endangered the residents of the Naval Support
Activity, and violated the Department of the Navy’s Drug-
Free Workplace policy.” He added that he had considered
various factors bearing on the appropriate penalty, in-
cluding the seriousness of the offense, the effect of the
offense on her supervisors’ confidence in her ability to
perform her assigned duties, and the consistency of the
penalty with those imposed on other employees for the
same or similar offenses. Although he considered her 24
years of service, her satisfactory record of performance,
and the absence of any prior disciplinary record to be
“significant mitigating factors,” he concluded that those
factors did not outweigh the nature and seriousness of the
offense. Ms. Harding sought review of the Commandant’s
decision and opted in favor of review by an arbitrator.
     The arbitrator upheld the removal. Based on the
largely undisputed facts and Ms. Harding’s admission
that “she has never denied that she engaged in the con-
duct [of] which she has been accused,” the arbitrator
found that Ms. Harding was under the influence of illegal
drugs and alcohol while off duty on the NSA grounds.
Addressing Ms. Harding’s arguments, the arbitrator ruled
(1) that the USNA had established a nexus between her
off-duty misconduct and her job duties in light of her
4                 HARDING   v. UNITED STATES NAVAL ACADEMY



“extremely serious violation of USNA work rules,” partic-
ularly in light of the fact that her off-duty misconduct
occurred on the NSA facility; (2) that removal was within
the prescribed table of penalties for her offense and was
“within the tolerable bounds of reasonableness”; (3) that
the Commandant’s decision and his testimony about the
decisionmaking process showed “a careful and reasoned
consideration of the applicable Douglas factors,” see
Douglas v. Veterans Admin., 5 M.S.P.R. 280 (1981), re-
garding the appropriateness of the penalty; and (4) that
Ms. Harding had failed to establish that the penalty of
removal reflected disparate treatment of Ms. Harding
when compared to the penalties imposed on other, simi-
larly situated employees. Ms. Harding then petitioned for
review by this court.
                             II
    On appeal, Ms. Harding relies heavily on the argu-
ment that she was denied due process because she was
not adequately notified of various aspects of the conduct,
evidence, and aggravating penalty factors that the decid-
ing official considered in reaching his removal decision.
She concedes that she did not raise any of her due process
concerns before the arbitrator, but she argues that be-
cause her claims are constitutional in nature, she is
entitled to raise those claims for the first time on appeal.
    A reviewing court has discretion to consider issues not
raised below under certain circumstances. See Singleton
v. Wulff, 428 U.S. 106, 121 (1976); Forshey v. Principi, 284
F.3d 1335, 1353-59 (Fed. Cir. 2002) (en banc). However,
there is no strict rule requiring the court to consider any
constitutional issue raised on appeal even though it was
not raised below. See Singleton v. Shinseki, 659 F.3d
1332, 1334 n.2 (Fed. Cir. 2011); Beard v. Gen. Servs.
Admin., 801 F.2d 1318, 1321 (Fed. Cir. 1986); Hayes v.
Dep’t of the Navy, 727 F.2d 1535, 1539 (Fed. Cir. 1984).
HARDING   v. UNITED STATES NAVAL ACADEMY                  5



     Ms. Harding has not offered any explanation for her
failure to raise her due process claims before the arbitra-
tor, and for that reason, we see no justification for excus-
ing her failure to preserve those issues below. Nor has
she shown that the asserted errors that she seeks to raise
in this court for the first time on appeal rendered the
disciplinary proceedings in this case fundamentally
unfair. We therefore conclude that this is not an appro-
priate case in which to exercise our discretion to excuse
the failure to raise those claims before the arbitrator.
    Even apart from the procedural default, we would
reject Ms. Harding’s due process claims on the merits.
Her first contention is that she was not given notice of the
charges that formed the basis for the deciding official’s
decision to remove her. She argues that the notice of
proposed removal referred to her “being under the influ-
ence of drugs and alcohol while off-duty on government
property,” while the notice of decision “added the new and
more serious charge of illegal drug use.” Accordingly, she
submits, the agency impermissibly relied on uncharged
conduct in deciding to remove her.
    That argument is unpersuasive. The notice of pro-
posed removal included a brief narrative account of the
charge against her, explaining that she had been found to
be under the influence of drugs and alcohol, and had
admitted illegal use of cocaine to the arresting officer.
The notice further explained that the use of drugs and
alcohol negatively affected the agency’s ability to accom-
plish its mission, that “illegal drug use cannot be tolerat-
ed” in her position, that her “off-duty misconduct
involving illegal drugs and alcohol was discovered
onboard a Navy facility, that [she was] operating a motor
vehicle, and that [her] illegal drug use may find its way
into the work place . . . .” The notice of proposed removal
thus could not reasonably have misled Ms. Harding into
believing that illegal drug use was not part of the reason
underlying the proposal to remove her.
6                 HARDING   v. UNITED STATES NAVAL ACADEMY



    Ms. Harding’s second due process claim is that she
was not given notice that the USNA’s deciding official
would rely on the police report of her January 12, 2012,
arrest in making his decision to remove her. The notice of
proposed removal, however, stated that Ms. Harding and
her representative could “review the material relied upon
to support proposing your removal,” including “the official
case file.” Ms. Harding does not contend that the police
report was not in the case file or that she was denied the
opportunity to review the police report. Under these
circumstances, providing access to the materials the
agency relied upon to support the removal action was
sufficient to satisfy any possible due process concerns.
See Darnell v. Dep’t of Transp., 807 F.2d 943, 945 (Fed.
Cir. 1986); Novotny v. Dep’t of Transp., 735 F.2d 521, 523
(Fed. Cir. 1984). Moreover, as Ms. Harding has never
disputed any of the underlying facts relating to the charg-
es against her, it is unclear how earlier access to the
police report would have been of any assistance to her.
    Ms. Harding’s third due process claim is that her
removal was improperly based on several aggravating
penalty factors of which she was not given notice. The
factors about which she complains are: (1) that she acted
with intent; (2) that her removal was consistent with
discipline in other similar cases; and (3) that she had
operated her car while in an impaired state, thus endan-
gering residents of the NSA.
    As to intent, there has never been any dispute that
Ms. Harding acted intentionally in using cocaine and in
driving her vehicle onto the NSA grounds while in an
impaired state. The deciding official’s reliance on that
factor could not reasonably have come as a surprise to Ms.
Harding, given that there was essentially no dispute over
the underlying facts that led to her removal. Indeed, in
her response to the notice of proposed removal, she effec-
tively admitted that she had driven onto the NSA facility
HARDING   v. UNITED STATES NAVAL ACADEMY                   7



intentionally, i.e., with the purpose of retrieving a key for
the banquet room she intended to use that night.
    As to the deciding official’s reference to the discipline
imposed in similar cases, the major focus of that portion of
the notice of decision was on the prescribed range of
penalties for off-duty drug use, which included removal,
and Executive Order No. 12564, which prohibits drug use
by federal employees, whether on or off duty. The decid-
ing official explained that the reference to penalties
“imposed upon other employees with similar misconduct”
related to a case decided by a different deciding official
several years earlier. The deciding official testified that
he typically inquired about other similar cases because,
“from a consistency standpoint in terms of process it’s
good to reference.” But he added that the information
about the one similar case that he learned of was not
material to his decision. Moreover, the fact of consistency
with other decisions was not used as an aggravating
factor, and thus due process would not require that the
employee be given advance notice of the deciding official’s
intent to consider the penalties imposed on others.
     Finally, Ms. Harding argues that she was improperly
denied notice that the deciding official would rely on the
danger that Ms. Harding’s conduct presented to persons
living in the part of the NSA facility where she had been
driving, which was a residential area. The act of driving
under the influence of drugs or alcohol, however, is inher-
ently dangerous. The deciding official was merely point-
ing out that Ms. Harding’s conduct presented a danger to
persons in the NSA, a conclusion that flowed naturally
from the fact of impaired driving in a residential area.
She was not deprived of due process by not being advised
8                 HARDING   v. UNITED STATES NAVAL ACADEMY



in advance that the deciding official might draw that
inference from the nature of the charged conduct. 1
                            III
    Ms. Harding next argues that the arbitrator commit-
ted legal error by failing to require the USNA to prove
certain penalty-related facts by a preponderance of the
evidence. That claim is insubstantial.
    First, although Ms. Harding complains that the
agency failed to prove that she “was an habitual drug
user” there was no reason for the agency to attempt to
prove habitual drug use, because habitual drug use was
not part of the agency’s reason for removing her. “Drug



    1    Ms. Harding relies on this court’s decisions in
Ward v. U.S. Postal Serv., 634 F.3d 1274 (Fed. Cir. 2011),
and Stone v. FDIC, 179 F.3d 1368 (Fed. Cir. 1999), to
support her claim that she was denied due process by not
being notified of the penalty-related factors listed above.
Those cases are inapposite, as they both involved ex parte
contacts with the deciding official in which information
was conveyed to the decisionmaker without the employ-
ee’s knowledge. In Ward, the ex parte communication
conveyed information about several past instances of
misconduct by the employee, which the deciding official
took into account in deciding that removal was warranted.
634 F.3d at 1278. The past misconduct in Ward, unlike
the factors raised by Ms. Harding, was clearly an aggra-
vating factor as to which the employee had no notice. In
Stone, the ex parte communication included the recom-
mendation of another agency official that the employee be
removed. 179 F.3d at 1372. The court remanded in Stone
to determine whether the ex parte communication intro-
duced new and material information to the deciding
official. Id. at 1377. There is no issue of ex parte commu-
nication with the deciding official in this case.
HARDING   v. UNITED STATES NAVAL ACADEMY                    9



use” was one of the reasons for her removal, not “habitual
drug use.”
    Second, Ms. Harding argues that the agency did not
prove that anyone was endangered by her impaired
driving or that “she was any kind of a risk.” As noted
above, however, impaired driving is inherently dangerous
conduct; it was not necessary to prove that Ms. Harding’s
conduct was dangerous, and the USNA never claimed
that she directly endangered any particular individual.
    Finally, Ms. Harding argues that the agency did not
prove that her supervisors had lost confidence in her. She
relies on testimony from two of her immediate supervisors
who stated that she was a good worker and that they
would be happy to have her return to her job. Two high-
er-level supervisors, however, took a different view. One
testified that he agreed with the decision to remove Ms.
Harding, explaining that he would be nervous about the
risks associated with having a food service employee
under the influence of drugs. The other supervisor was
the proposing official, who stated in the notice of proposed
removal that he was “unwilling to put at risk the health
and safety of other Naval Academy employees, midship-
men, and the families of those who live aboard NSA and
the Naval Academy by allowing [Ms. Harding’s] continued
presence on the Naval Academy complex.” While Ms.
Harding characterizes those views as exaggerated and the
product of command influence, the evidence was plainly
sufficient to support a conclusion that her supervisors at
the USNA had lost confidence in Ms. Harding.
                             IV
     Ms. Harding next contends that the penalty of remov-
al for “a single, isolated, off-duty incident” is “unconscion-
ably beyond the bounds of reasonableness.” We regard
the penalty as quite harsh in light of Ms. Harding’s 24
years of service with the USNA and the absence of any
prior disciplinary actions in her record. In view of the
10                HARDING   v. UNITED STATES NAVAL ACADEMY



extremely limited scope of our review of penalty determi-
nations, however, we uphold the penalty assessed in this
case.
    The task of selecting a penalty rests primarily with
the employing agency. As this court has explained, it is “a
well-established rule of civil service law that the penalty
for employee misconduct is left to the sound discretion of
the agency.” Lachance v. Devall, 178 F.3d 1246, 1251
(Fed. Cir. 1999). The first level of review of the agency’s
decision is by the Merit Systems Protection Board or an
arbitrator. That review is limited to determining whether
the choice of penalty was an abuse of discretion. McGow-
an v. Dep’t of the Air Force, 28 M.S.P.R. 314, 317 (1985).
Our review, which is the second-level review of the penal-
ty decision, is even more limited.
     The various formulations of our reviewing authority
over agency penalty determinations bristle with words of
limitation. We have stated that we will not disturb an
agency’s choice of penalty within statutory or regulatory
limits “unless the severity of the agency’s action appears
totally unwarranted in light of all the factors,” Mings v.
Dep’t of Justice, 813 F.2d 384, 390 (Fed. Cir. 1987), unless
it is “grossly disproportionate to the offense,” Miguel v.
Dep’t of the Army, 727 F.2d 1081, 1083 (Fed. Cir. 1984),
unless it is “so harsh and unconscionably disproportionate
to the offense that it amounts to an abuse of discretion,”
Gonzales v. Def. Logistics Agency, 772 F.2d 887, 889 (Fed.
Cir. 1985), or unless it is “outrageously disproportionate”
to the offense, Bryant v. Nat’l Sci. Found., 105 F.3d 1414,
1418 (Fed. Cir. 1997). “Whether [this court] would have
chosen a different penalty is irrelevant.” Hunt v. Dep’t of
Health & Human Servs., 758 F.2d 608, 611 (Fed. Cir.
1985).
   In this case, the penalty of removal was among the
permissible penalties set forth in the USNA’s table of
penalties for unlawful use of illegal drugs on or off duty.
HARDING   v. UNITED STATES NAVAL ACADEMY                 11



Moreover, the conduct in question involved not only the
use of drugs, but also driving under the influence of
alcohol or drugs in a residential Naval facility, conduct
that the deciding official considered to have potentially
endangered residents in the area. Although the arbitra-
tor concluded that the penalty of removal was “at the
outer extreme of the range of penalties,” he concluded
that it was “within the tolerable bounds of reasonable-
ness.” Applying the restrictive standard applicable to our
review of the arbitrator’s decision, we hold that the penal-
ty is not outrageously disproportionate to the offense or
totally unwarranted, and we therefore uphold the penalty
selected by the deciding official.
                             V
    Ms. Harding next contends that the arbitrator im-
properly failed to consider the less severe disciplinary
measures imposed on similarly situated employees, and
that Ms. Harding’s removal should be overturned for that
reason. The arbitrator considered the other disciplinary
cases that Ms. Harding presented for his consideration
but concluded that none of them were comparable; he
therefore rejected her argument that she had been sub-
jected to disparate treatment.
    In her brief, Ms. Harding raises the same cases that
she presented to the arbitrator. After reviewing them, we
agree with the arbitrator that they are not comparable to
this case and therefore do not support her claim of dispar-
ate treatment. Several of the cases involved employees
who were given lesser penalties than removal after being
found to be under the influence of alcohol or drinking
while on duty. Those cases did not involve the use of
drugs, nor did they involve driving while under the influ-
ence of drugs or alcohol, as in Ms. Harding’s case. In
another case an employee who was arrested but not
charged in 2002 in connection with a shooting incident,
revealed that he had used drugs in the past, but was
12                HARDING   v. UNITED STATES NAVAL ACADEMY



given a last chance agreement in lieu of removal. The
arbitrator found that case to be factually different from
Ms. Harding’s case and “attenuated by time.” Finally, in
two 2009 cases in which employees were charged with
possession of cocaine, both employees were removed,
although one was allowed to resign in lieu of removal, a
disposition that is effectively the same as removal. Those
cases therefore do not aid Ms. Harding. After reviewing
the allegedly comparable cases, we agree with the arbitra-
tor that they do not support Ms. Harding’s claim of dis-
parate treatment.
                            VI
     Finally, Ms. Harding argues that the arbitrator erred
by concluding that the USNA established a nexus be-
tween the off-duty conduct charged against Ms. Harding
and the duties of her position. We conclude that substan-
tial evidence supports the arbitrator’s conclusion that the
agency proved the requisite nexus between Ms. Harding’s
conduct and her duties to justify disciplinary action.
    The USNA work rules and Executive Order No. 12564
make clear that even off-duty drug use is prohibited
conduct for employees. The arbitrator found that the
proof of nexus was clear in light of those rules. He further
found that the evidence of nexus was buttressed by the
fact that Ms. Harding’s off-duty misconduct of driving
under the influence of drugs or alcohol occurred on the
NSA grounds, which are Navy property.
     In Executive Order No. 12564, the President made an
express finding directed to the nexus between illegal drug
use and federal employment, concluding that “[t]he use of
illegal drugs, on or off duty, by Federal employees impairs
the efficiency of Federal departments and agencies.” 3
C.F.R. 224, 225 (1987). Case law from this court likewise
supports the arbitrator’s conclusion that there is a suffi-
cient nexus between illegal drug use, even off duty, and
federal employment. See Rice v. Dep’t of the Treasury, 998
HARDING   v. UNITED STATES NAVAL ACADEMY                 13



F.2d 997, 999 (Fed. Cir. 1993) (“The law is well settled
that an employee can be removed for off-duty possession
and use of . . . illegal drugs.”); Sanders v. U.S. Postal
Serv., 801 F.2d 1328, 1332 (Fed. Cir. 1986) (citing cases).
Ms. Harding argues that the principle of those cases does
not apply to circumstances such as hers, in which only a
single use of drugs was charged. In fact, however, this
court has applied the principle set forth in those cases to
sustain removal actions in other cases involving charges
of only a single off-duty use of illegal drugs. See Stump v.
Dep’t of Transp., 761 F.2d 680 (Fed. Cir. 1985); Peterson v.
Dep’t of the Navy, 268 F. App’x 961 (Fed. Cir. 2008). In
light of those authorities and the evidence relating to Ms.
Harding’s impaired driving on Navy property, we sustain
the arbitrator’s conclusion that the USNA proved a nexus
between Ms. Harding’s misconduct and her job responsi-
bilities. Accordingly, we uphold the arbitrator’s decision
sustaining Ms. Harding’s removal.
                       AFFIRMED
