NOTE: This disposition is nonprecedential.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, Washington, DC, argued for petitioner. 

 IGOR HELMAN, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, 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 attempt 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 divorced 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 inappropriate conduct. He ultimately served a two-day suspension 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 building, 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. During 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 factors 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 considered 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 impairment 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 reprimanded for misconduct, including his two-day suspension in 

2011 for inappropriate radio transmissions and his twoday 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 rehabilitation 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 determining 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 improvement following his participation in the Employee 

Assistance Program. The arbitrator refused to consider 

the arguments stemming from that evidence in his analysis 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 immigration 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 administrative 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 misconduct.

Mr. Koester now appeals. We have jurisdiction to decide 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 otherwise not in accordance with law; (2) obtained without 

procedures required by law, rule, or regulation having 

been followed; or (3) unsupported by substantial evidence.” Id. § 7703(c).

An agency’s penalty for employee misconduct is within 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 unconscionably 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 impaired while on duty due to alcohol consumption. He 

instead attacks the Park Police’s removal penalty. Specifically, Mr. Koester makes four arguments aimed at reducing 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 discretion when he failed to independently assess and appropriately 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 discretion when he ignored new evidence that was not presented 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 bullying, and the effect of his wife’s poor immigration interview. 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 evidence 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 erroneous 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 reasonable 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 consideration 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 supports a different conclusion.

The Park Police disagrees. It counters that the arbitrator properly and independently considered the relevant 

Douglas factors. It argues that the evidence supports 

concluding that Mr. Koester is a poor candidate for rehabilitation, 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 drinking incident or it is an inappropriate justification for 

consuming alcohol while on duty to the point of intoxication. 

Mr. Koester’s argument is unpersuasive. The arbitrator 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 Systems Protection Board or an arbitrator). The arbitrator 

heard Mr. Koester’s evidence that he was a recovering 

alcoholic who has received significant treatment, independently assessed the rehabilitative evidence, and 
10 KOESTER v. UNITED STATES PARK POLICE

reasonably concluded that it did not outweigh the “extremely 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 evidence 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 bargaining agreement between the Union and the Park 

Police. He argues that, under the terms of that agreement, 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 arbitrator 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 Program]. However, it is understood that if the Officer is 

unable to improve his/her job performance to an acceptable 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 Employee 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 impermissible 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 misconduct.

We agree that the arbitrator’s decision to treat any 

perceived error as harmless was not arbitrary and capricious. 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 disciplinary 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 inappropriate 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 arbitrator’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.