[00:00:01] Speaker 03:
Counsel, you may proceed.

[00:00:12] Speaker 01:
Good morning.

[00:00:12] Speaker 01:
May it please the court?

[00:00:13] Speaker 01:
Scott Hagel on behalf of the appellate.

[00:00:17] Speaker 01:
It's uncontested that Officer Koster had a drinking problem.

[00:00:20] Speaker 01:
And it's uncontested that he's rehabilitated himself.

[00:00:23] Speaker 01:
What we want to focus on today are three legal issues before you.

[00:00:26] Speaker 03:
You say it's uncontested that he rehabilitated himself?

[00:00:29] Speaker 01:
Yes, Your Honor.

[00:00:30] Speaker 01:
He testified at the arbitration at length of the measures that he's endeavored to cure himself of alcoholism.

[00:00:38] Speaker 01:
Now, the three issues that we want to focus on today are whether the... He's in the process of rehabilitation.

[00:00:44] Speaker 01:
He has not had a relapse since 2013.

[00:00:47] Speaker 01:
The three issues that we would like to focus on today... What's a relapse?

[00:00:53] Speaker 01:
Well, he's not consumed alcohol.

[00:00:56] Speaker 01:
Is that in the record?

[00:00:57] Speaker 01:
Yes, it is.

[00:00:58] Speaker 01:
Well, he testifies on appendix 200 to 203 about his efforts for rehabilitation.

[00:01:08] Speaker 01:
You're correct.

[00:01:08] Speaker 01:
He doesn't specifically say that he's not drunk.

[00:01:12] Speaker 03:
At 246, 47, in discussing the inappropriate radio transmissions charge, Mr. Koster said he, quote, drank a little bit too much before making the transmissions, which, according to the record, were completely garbled.

[00:01:27] Speaker 03:
Isn't this prior discipline, which involved actions taken by Mr. Koster after drinking on duty, highly relevant to the charge here?

[00:01:36] Speaker 01:
The consumption of alcohol was not on duty.

[00:01:39] Speaker 01:
He made the radio transmissions when he was off duty.

[00:01:43] Speaker 03:
But what we'd like to focus on is whether they... Why doesn't that conduct... It's not what you'd like to focus on.

[00:01:49] Speaker 03:
It's what we'd like to focus on.

[00:01:52] Speaker 03:
Why doesn't this conduct undercut your characterization of his drinking in October 2013 as a one-off situation based on unique stresses going on in his life at that time, his wife's problems, and PTSD and so on?

[00:02:06] Speaker 01:
Right.

[00:02:07] Speaker 01:
Well, unquestionably, he had an alcohol problem.

[00:02:10] Speaker 01:
And in 2011, he had an alcohol problem.

[00:02:12] Speaker 01:
If he drank today.

[00:02:14] Speaker 03:
Did he seek assistance through the Employee Assistance Program after the initial radio

[00:02:22] Speaker 03:
inappropriate radio transmission.

[00:02:23] Speaker 01:
No, Your Honor.

[00:02:27] Speaker 01:
But under the agency's collective bargaining agreement, which is, for your review, De Novo, and its binding policy from the agency, non-discretionary policy, they are obligated, if you look at page 67 of the appendix, it is agreed that the employer's activities in this program are directed toward the resolution of problems that result from the recognizable interference with the officer's conduct and or performance.

[00:02:52] Speaker 03:
So how is that directly relevant to an officer, for example, engaging in conduct which is dangerous to the public?

[00:03:03] Speaker 01:
That's not before the court.

[00:03:05] Speaker 01:
He was not engaged in conduct that was dangerous towards the public.

[00:03:09] Speaker 01:
Really?

[00:03:10] Speaker 03:
An officer with an armed officer inebriated on duty?

[00:03:14] Speaker 01:
This was an overnight shift.

[00:03:17] Speaker 01:
There's no public there.

[00:03:19] Speaker 01:
He has sought.

[00:03:21] Speaker 01:
rehabilitation for his conduct.

[00:03:23] Speaker 03:
You argue that in the blue brief at 22, that the arbitrator erred in refusing to consider evidence of mitigating circumstances not presented at the agency level.

[00:03:34] Speaker 03:
And in the red brief, the park police state the record itself demonstrates that the arbitrator heard testimony on and they emphasize all mitigating factors and simply gave them less weight.

[00:03:47] Speaker 03:
Do you agree that the arbitrator at least acknowledged those mitigating factors?

[00:03:52] Speaker 01:
He did listen to testimony, because it was presented to him.

[00:03:55] Speaker 03:
So is it your contention he gave them insufficient weight?

[00:03:58] Speaker 01:
It's my contention that he absolved himself of having to consider them on the grounds that they were not presented at the agency level.

[00:04:08] Speaker 00:
He said that, especially with regards to the testimony about the wife having difficulty in the meeting with immigration people.

[00:04:17] Speaker 00:
So that's the point, his opinion, where he says expressly, I don't need to consider this.

[00:04:23] Speaker 01:
Correct.

[00:04:23] Speaker 01:
And that also applied with his ordeal during Hurricane Sandy, which clearly traumatized him.

[00:04:30] Speaker 00:
Let me just ask one question.

[00:04:31] Speaker 00:
When I looked at the table of penalties on alcohol, my recollection was that for the first offense, the suspension of some time period, is that correct?

[00:04:43] Speaker 00:
What's the table of penalties on alcohol abuse?

[00:04:46] Speaker 01:
I believe the table of penalties, it only warrants removal, it mandates removal after either a second or third attempt or incident of the conduct.

[00:04:58] Speaker 01:
And the arbitrator found that since they were just discretionary, the agency could not follow them to the letter and they could aggravate as they found warranted by the conduct.

[00:05:10] Speaker 00:
The record here was that no, I think that the agency had never dealt with anybody who had been intoxicated

[00:05:16] Speaker 00:
at this, on this particular duty at this particular site.

[00:05:20] Speaker 00:
Correct.

[00:05:20] Speaker 00:
But there's not gathered nothing in the record about a pattern of alcohol problems in the service and varying degrees of discipline given.

[00:05:30] Speaker 00:
It just struck me that with a table of penalties that starts with what, a five-day suspension or something like that and then even the second offense is not greater, that suggested perhaps that the agency had some

[00:05:43] Speaker 00:
problems with alcohol and therefore dealt with it in that way.

[00:05:49] Speaker 01:
I think that law enforcement officers in particular do have some incidents of alcoholism because of their stress in their line of work.

[00:05:59] Speaker 01:
The agency wanted to get rid of Officer Koster.

[00:06:02] Speaker 01:
He was seen as a weirdo in the agency.

[00:06:06] Speaker 01:
They wanted him gone.

[00:06:07] Speaker 00:
Well, that's not in the record.

[00:06:10] Speaker 00:
You're implying that from the record.

[00:06:12] Speaker 01:
Actually, the chairman testifies to his reputation for the agency.

[00:06:56] Speaker 01:
If you look at Appendix 137, the Chairman, Ian Glick, testifies on Line 4, Page 137 of the Appendix.

[00:07:14] Speaker 01:
Frankly, the reputation is that he is weird.

[00:07:16] Speaker 01:
And this sort of stems from the allegations of rape and sexual assault.

[00:07:25] Speaker 01:
that were dismissed back in 2001 that were essentially held against him by his fellow officers.

[00:07:33] Speaker 03:
He also says he doesn't think that.

[00:07:36] Speaker 01:
He didn't, correct, because he'd had a lot of dealings with him.

[00:07:38] Speaker 01:
And he actually explained to his fellow officers that, look, there are no charges filed.

[00:07:45] Speaker 01:
He's no weirder than any of us.

[00:07:48] Speaker 01:
But the agency allows these sort of rumors to swirl around.

[00:07:55] Speaker 01:
There's a suitability document that we mentioned in our brief, those union exhibit six, where his captain cites, quote, warranted concerns of workplace violence, which they don't even investigate.

[00:08:10] Speaker 01:
He's just simply laying the groundwork to get rid of them.

[00:08:15] Speaker 01:
But under the collective bargaining agreement and the agency's policy, they have to provide him a chance to rehabilitate himself.

[00:08:24] Speaker 01:
And Sergeant Beckett did exactly what the agency is supposed to do.

[00:08:28] Speaker 01:
She recognized that he had a problem when he got off the dock, and she had been with him during Hurricane Sandy one year before.

[00:08:35] Speaker 01:
She saw that he had a problem.

[00:08:37] Speaker 01:
She called EAP for him at the Employee Assistance Program.

[00:08:41] Speaker 01:
She provided an authorization slip, and he spoke with the EAP.

[00:08:45] Speaker 01:
He engaged in the six sessions that were covered by the agency.

[00:08:49] Speaker 01:
He then continued his private efforts.

[00:08:51] Speaker 01:
He attended Alcoholics Anonymous.

[00:08:53] Speaker 01:
the Marine League Corps, which he took great solace in, and private psychotherapy to overcome these demons that he's been fighting since 2001, essentially.

[00:09:04] Speaker 01:
So he was never given the opportunity to show that he had improved.

[00:09:08] Speaker 01:
He was on administrative leave.

[00:09:10] Speaker 01:
The agency, during the administrative leave, he was rehabilitating himself.

[00:09:15] Speaker 01:
The agency finally proposes him for termination almost a year later in August of 2014.

[00:09:22] Speaker 01:
And then they, in 2015, finally issue a final decision on his 19th year of federal service, one year before his pension kicks in.

[00:09:32] Speaker 00:
Let me ask a question about the final page of the arbitrator's decision where the two-day suspension came up.

[00:09:38] Speaker 00:
And the arbitrator says the union is correct that the deciding official erred in relying on the two-day suspension.

[00:09:45] Speaker 00:
What was your argument as to why it was erred to rely on the two-day suspension?

[00:09:52] Speaker 01:
Yes.

[00:09:53] Speaker 00:
The reason for it is not given in the opinion.

[00:09:57] Speaker 01:
Right.

[00:09:57] Speaker 01:
Well, the deciding official expressly coupled the severity of the conduct with the aggravating factors to impose the penalty.

[00:10:06] Speaker 00:
I understand that.

[00:10:07] Speaker 00:
So what was wrong with considering the two-day suspension?

[00:10:11] Speaker 01:
The inappropriate radio transmission suspension, that's fair game.

[00:10:14] Speaker 01:
That happened in 2011.

[00:10:15] Speaker 00:
I understand that.

[00:10:16] Speaker 00:
But this particular one, what the opinion says is the union is correct.

[00:10:21] Speaker 00:
that the deciding official made a mistake, but he finds it harmless.

[00:10:23] Speaker 01:
Well, I want to know what the mistake was.

[00:10:26] Speaker 01:
OK.

[00:10:27] Speaker 01:
The AWOL charge, the conduct occurred in 2011.

[00:10:31] Speaker 01:
But he wasn't proposed for discipline until three weeks after the October 29, 2013 conduct.

[00:10:37] Speaker 01:
So he wasn't on notice that he was going to be disciplined.

[00:10:40] Speaker 01:
He had no idea that he needed to progressively improve himself.

[00:10:44] Speaker 01:
And one of the agency's tenancies is progressive discipline.

[00:10:48] Speaker 01:
deciding official testifies during the arbitration that they follow progressive discipline.

[00:10:53] Speaker 00:
And so the arbitrator says, shouldn't have considered the AWOL, but I can get there because the two days, the radio suspension was legit.

[00:11:05] Speaker 00:
I think the arbitrator simply.

[00:11:06] Speaker 00:
They built the progressive temperament based on one instead of two.

[00:11:11] Speaker 01:
I think the arbitrator

[00:11:13] Speaker 00:
had made up his mind that the conduct was... Yeah, I know, but what's wrong with the arbitrator saying it's harmless error instead of having two examples of a prior discipline?

[00:11:23] Speaker 00:
There's just one now, but one plus this is cumulative.

[00:11:27] Speaker 01:
Because, Your Honor, the deciding official repeatedly goes back to the two suspensions during his final decision.

[00:11:33] Speaker 01:
He uses the two suspensions to aggravate four of the nine Douglas Factors to swing it

[00:11:39] Speaker 01:
towards removal and overwhelmingly aggravate the Douglas Factors.

[00:11:47] Speaker 01:
So the government argues that the EAP provision, section 28.1 and 28.2, would provide a safe harbor for officers.

[00:11:58] Speaker 01:
They could always resort to it and avoid discipline.

[00:12:03] Speaker 01:
Here, that's not what happened.

[00:12:04] Speaker 01:
Officer Koster did what the policy, the nondiscretionary policy,

[00:12:09] Speaker 01:
in visions, and he did not invoke EAP.

[00:12:14] Speaker 01:
His sergeant invoked it on his behalf, and he was not subject to disciplinary proceedings at that time.

[00:12:21] Speaker 01:
So he didn't use it to sort of shield himself from a discipline.

[00:12:25] Speaker 03:
Just so you know, you're into your rebuttal time, but you can keep going.

[00:12:29] Speaker 01:
He didn't use it to shield himself.

[00:12:31] Speaker 01:
He used it to make his life better and to finally overcome these demons that have been plaguing him since 2001, essentially.

[00:12:39] Speaker 01:
One quick point I'd like to make is that the arbitrator erred by failing to consider mitigating factors on the grounds that the agency did not, that they were not presented to the agency.

[00:12:55] Speaker 01:
That's clearly against the case law of Norris and... And Norris gets your remit.

[00:13:03] Speaker 01:
Yes, correct.

[00:13:06] Speaker 01:
So I'd like to reserve the remainder of my rebuttal.

[00:13:34] Speaker 03:
Mr. Hillman, in the blue brief at 36, and your opposing counsel argued orally as well, Mr. Koster argues the Park Police failed to follow progressive discipline by relying on his prior AWOL leave because that discipline was not imposed until after the conduct it issued here.

[00:14:04] Speaker 03:
Now, the arbitrator found that was harmless because of, quote, due to the extreme nature of Mr. Koster's misconduct.

[00:14:12] Speaker 03:
But what evidence do we have that the deciding official would have reached the same result, even if he hadn't taken into consideration the AWOL discipline?

[00:14:21] Speaker 02:
Several pieces of evidence, Your Honor.

[00:14:22] Speaker 02:
The AWOL suspension is not the only prior instance of misconduct here.

[00:14:28] Speaker 03:
Well, we know that.

[00:14:29] Speaker 02:
There's the inappropriate radio charge

[00:14:31] Speaker 02:
that he admitted.

[00:14:32] Speaker 02:
That's building with a question.

[00:14:34] Speaker 02:
There's a breach of security.

[00:14:36] Speaker 02:
And there's another.

[00:14:37] Speaker 00:
The arbitrator is, throughout the opinion, referring to both, right?

[00:14:45] Speaker 02:
The arbitrator or the deciding official?

[00:14:47] Speaker 00:
Both, the deciding official.

[00:14:49] Speaker 02:
The deciding official mentions the two prior suspensions in his discussion of why he doesn't believe that Mr. Costner has the potential for rehabilitation.

[00:15:01] Speaker 02:
Say that again.

[00:15:02] Speaker 00:
He really, really can't learn, because he stubs his toe the first time, right?

[00:15:07] Speaker 00:
And then he stubs his toe the second time, and it's sort of getting a little worse.

[00:15:10] Speaker 00:
And finally, he stubs his toe in big way.

[00:15:14] Speaker 02:
Yes, Your Honor, although it's not on the third time.

[00:15:17] Speaker 00:
He goes to first base, and he makes a mistake.

[00:15:19] Speaker 00:
Second base, he makes a mistake.

[00:15:20] Speaker 00:
Third base.

[00:15:22] Speaker 02:
Yes, except there are other instances.

[00:15:25] Speaker 02:
And that's actually the reason for the timing of the AWOL charge.

[00:15:28] Speaker 00:
Well, to come back to the presiding judge's question,

[00:15:31] Speaker 00:
Put your finger right on it.

[00:15:34] Speaker 00:
How do we know that the deciding official comes out the same way if he only has one prior offense?

[00:15:43] Speaker 02:
I think you look at the rest of the deciding official's determination.

[00:15:47] Speaker 02:
The severity of the misconduct here.

[00:15:49] Speaker 02:
Mr. Kester is a law enforcement officer tasked with enforcing laws.

[00:15:53] Speaker 02:
And the misconduct goes directly to the core function of the agency.

[00:16:00] Speaker 02:
And it's undisputed that he was so inebriated that night that he was unable to make a coherent radio transmission.

[00:16:07] Speaker 02:
He would have been unable to help his fellow officers.

[00:16:10] Speaker 02:
So the deciding official... Am I correct that he was driving under the influence?

[00:16:16] Speaker 02:
That is not in the record, Your Honor.

[00:16:18] Speaker 02:
I don't actually believe that that's...

[00:16:21] Speaker 02:
When he was on the island, he was under the influence, but I don't believe he drove at that time.

[00:16:26] Speaker 02:
He stumbled around and he was on video stumbling around.

[00:16:29] Speaker 02:
And then I believe there's testimony that Sergeant Beckett drove him home after they got off the island because they thought he was in no shape to drive.

[00:16:38] Speaker 02:
But he's carrying a firearm.

[00:16:40] Speaker 02:
He is there as one of, I believe, two officers on duty.

[00:16:44] Speaker 02:
And if he'd be unable to assist his fellow officers or respond to any sort of emergency, I think

[00:16:50] Speaker 02:
that is the main thrust of the deciding officials concerned with Mr. Koster's behavior here.

[00:16:57] Speaker 02:
And he does say that during the last four years, he'd been suspended twice.

[00:17:02] Speaker 02:
The prior offenses are certainly relevant.

[00:17:06] Speaker 02:
And my earlier point is that there's more than just the two suspensions.

[00:17:11] Speaker 02:
There's also a letter of reprimand.

[00:17:12] Speaker 02:
And the administrative way that these suspensions happen to fall

[00:17:15] Speaker 02:
out should not be dispositive of whether progressive discipline was applied.

[00:17:20] Speaker 02:
It was applied here.

[00:17:20] Speaker 00:
He knew he had been written up on both occasions, right?

[00:17:23] Speaker 02:
Yes.

[00:17:25] Speaker 00:
Written up as opposed to formally disciplined.

[00:17:29] Speaker 02:
Well, Your Honor, I think that's the issue with the AWOL charge.

[00:17:33] Speaker 02:
It was one of three incidents in 2011 and 2012.

[00:17:37] Speaker 02:
So after the first radio transmission that was from alcohol, there were three incidents in 2011 and 2012.

[00:17:44] Speaker 02:
and I believe this is at appendix 30, there was the security breach where he led an unscreened individual through a security checkpoint.

[00:17:56] Speaker 02:
He gave her his card and personal cell phone number.

[00:17:59] Speaker 02:
There is the incident where he left his post, and ultimately that resulted in the AWOL charge.

[00:18:06] Speaker 02:
And then there is the time when he was watching TV in his car and misled his

[00:18:12] Speaker 02:
superior about what he was doing.

[00:18:14] Speaker 02:
So there are other instances in the record that undermine the deciding official's confidence in the fact that Mr. Koster is able to perform his duties to not commit further acts of misconduct.

[00:18:27] Speaker 02:
And Your Honor.

[00:18:29] Speaker 00:
But the deciding official doesn't specifically tie those to the decision.

[00:18:35] Speaker 00:
Those previous events.

[00:18:37] Speaker 02:
Your Honor, I believe in the notice of proposed removal that may be

[00:18:42] Speaker 02:
No, it's not.

[00:18:46] Speaker 00:
Can we focus on the Norris problem?

[00:18:49] Speaker 00:
Yes, Your Honor.

[00:18:51] Speaker 00:
We have the, at least with regard to the wife's difficulty with immigration, said I don't have to consider that at all, right?

[00:19:04] Speaker 02:
Your Honor is referring to page 53 of the decision.

[00:19:09] Speaker 02:
There's a misstatement in the arbitrator's opinion that the life's immigration interview was not presented.

[00:19:17] Speaker 02:
Well, actually, I take that back, Your Honor.

[00:19:22] Speaker 02:
There is no Norris problem here, because Norris only deals with what the record is before the arbitrator.

[00:19:27] Speaker 02:
Norris requires a new record.

[00:19:29] Speaker 02:
It requires that it.

[00:19:31] Speaker 00:
Well, Norris requires deciding the arbitrator or the board

[00:19:39] Speaker 00:
hear and consider all the evidence even though it wasn't presented to the agency.

[00:19:44] Speaker 02:
That's correct, Your Honor.

[00:19:44] Speaker 00:
And what we know here is that the evidence was heard on all four topics, I believe, right?

[00:19:50] Speaker 02:
Yes, Your Honor.

[00:19:51] Speaker 02:
And the arbitrator discusses it in his opinion.

[00:19:53] Speaker 02:
He doesn't say that this was irrelevant.

[00:19:56] Speaker 02:
He didn't exclude the evidence, which would have been improper under Norris.

[00:20:00] Speaker 02:
He considers it.

[00:20:01] Speaker 02:
This paragraph at the bottom of page 53 can be granted as a little

[00:20:08] Speaker 02:
less than perfect clarity.

[00:20:11] Speaker 02:
But our position is it goes to the weight that the arbitrator gave those factors.

[00:20:16] Speaker 02:
So that's indicated by the fact that, he says, moreover, the union made no specific reference in the notice of proposed removal.

[00:20:24] Speaker 02:
So earlier in the discussion, the arbitrator finds that, A, these mitigating factors would not have outweighed the severity of the misconduct.

[00:20:34] Speaker 02:
And B, they were sort of very after the fact.

[00:20:37] Speaker 02:
They weren't even brought up at the

[00:20:39] Speaker 02:
agency level.

[00:20:39] Speaker 04:
What about the language where it says, therefore, there is no ground for now claiming this as a mitigating factor?

[00:20:45] Speaker 04:
You're saying that that's a weighing determination?

[00:20:49] Speaker 02:
I think that sentence is properly read with the proceeding sentence, Your Honor.

[00:20:53] Speaker 02:
That says, moreover, the union made no specific reference in its response to the proposed removal.

[00:20:58] Speaker 02:
Therefore, there's no ground now for claiming it as a mitigating factor.

[00:21:01] Speaker 02:
I think it is.

[00:21:02] Speaker 02:
It's just saying that.

[00:21:03] Speaker 00:
Well, the first sentence says it wasn't raised below.

[00:21:07] Speaker 02:
Right.

[00:21:08] Speaker 02:
He's not saying, and therefore I've excluded it.

[00:21:11] Speaker 02:
He's saying it's a very after-the-fact explanation.

[00:21:14] Speaker 04:
He doesn't say anything.

[00:21:16] Speaker 04:
He doesn't say anything.

[00:21:17] Speaker 04:
And then the next time he actually says something, he says there is no ground for now claiming this is a mitigating factor, which you want to read to only refer to the sentence that is previous to it, right?

[00:21:29] Speaker 02:
Right.

[00:21:29] Speaker 00:
But there's nothing saying he considered it.

[00:21:33] Speaker 00:
Furthermore, the union didn't refer to the grievance ordeal during Hurricane Sandy.

[00:21:39] Speaker 02:
Again, our view is that the arbitrator is considering the lateness of it.

[00:21:46] Speaker 00:
Well, why is the arbitrator saying that unless it has some meaning?

[00:21:52] Speaker 02:
Because he's giving it weight.

[00:21:53] Speaker 02:
He's saying this was a post-fact explanation that Mr. Koster now throws out.

[00:22:00] Speaker 02:
He didn't even put it before the agency, and now he's reaching for other straws when he realized that his

[00:22:07] Speaker 02:
Prior mitigating factors of the 2001 arrest weren't enough.

[00:22:12] Speaker 02:
He's now saying, well, it was also the one-year anniversary of Hurricane Sandy.

[00:22:16] Speaker 02:
So he keeps reaching for additional explanations.

[00:22:19] Speaker 03:
And the arbitrator checks those.

[00:22:23] Speaker 03:
He says there is no ground for now claiming it.

[00:22:28] Speaker 02:
How do you explain that?

[00:22:32] Speaker 02:
The language is imprecise.

[00:22:33] Speaker 02:
Was he imprecise?

[00:22:37] Speaker 02:
a substantial amount of the hearing, considering hearing evidence, as Judge Cleminger, you pointed out.

[00:22:44] Speaker 02:
And then he discusses it in his opinion.

[00:22:46] Speaker 02:
If he was under the impression that this was irrelevant because it was not presented to the agency, why spend that time?

[00:22:52] Speaker 02:
Why discuss it in the opinion?

[00:22:54] Speaker 00:
Was there any briefing?

[00:22:57] Speaker 02:
Was there any briefing?

[00:22:57] Speaker 00:
Did anybody file any briefs?

[00:22:58] Speaker 00:
We don't have them.

[00:22:59] Speaker 00:
Was there any briefs filed with the arbitrator?

[00:23:01] Speaker 02:
There were closing statements filed, Your Honor.

[00:23:04] Speaker 00:
Only closing statements?

[00:23:05] Speaker 02:
Yes.

[00:23:06] Speaker 00:
No reference to law?

[00:23:08] Speaker 00:
No cases cited.

[00:23:10] Speaker 02:
I don't recall right now, and it's not in the record before this court, as to what the... Well, you would think that Norris would just be plastered all over this case.

[00:23:22] Speaker 00:
There's no Norris problem here, Your Honor, because he... I know you're saying there's no Norris problem, but... Well, but in Norris, it was clear... The sentence to which the presiding judge just pointed a minute ago suggests strongly that there is a Norris problem.

[00:23:37] Speaker 02:
So you're saying that the judge doesn't know about Norris.

[00:23:43] Speaker 00:
Maybe the judge's error was applicable.

[00:23:48] Speaker 00:
But if the judge knows that he's obligated, that there is a ground for claiming as a mitigating factor information not supplied to the agency but supplied to the arbitrator, right?

[00:24:01] Speaker 02:
And he took that information into account.

[00:24:04] Speaker 00:
So if the judge knows about

[00:24:07] Speaker 00:
Norris, he can't write that sentence.

[00:24:11] Speaker 02:
I think Your Honor is putting too much weight, and Judge Wallach, you as well, into the word claiming.

[00:24:16] Speaker 02:
This is not a waiver argument.

[00:24:19] Speaker 02:
I think it's just an inartful way of the arbitrator saying that it's too late to claim it as a mitigating factor because it smells like a post hoc explanation when your prior ones didn't work.

[00:24:36] Speaker 00:
What that means, that means that eviscerates Norris entirely.

[00:24:42] Speaker 00:
If an arbitrator can say, well, you've got this new argument now, I'm not much convinced about it, so I'm just not going to pay attention to it.

[00:24:49] Speaker 02:
Well, Norris didn't preclude the board or the arbitrator from weighing post-agency evidence.

[00:24:57] Speaker 00:
No, but he's required to consider it, put it on the scales.

[00:25:01] Speaker 00:
Sure.

[00:25:03] Speaker 00:
And to put it on the scales, you claim.

[00:25:06] Speaker 02:
as a mitigating factor.

[00:25:08] Speaker 02:
To put it on the scales as a mitigating factor, that's all that Norris requires.

[00:25:11] Speaker 02:
It doesn't require weight.

[00:25:12] Speaker 03:
Right, except because there's no ground for putting it on the scales.

[00:25:21] Speaker 02:
Our position is if the arbitrator was excluding this evidence, there would have been language like Norris where he said, I can't consider it because it wasn't presented.

[00:25:29] Speaker 02:
And if it was a strong mitigating factor, you would think the language would be

[00:25:34] Speaker 02:
He would say, well, this would have been a great mitigating factor.

[00:25:37] Speaker 02:
But for the fact you didn't present it to the agency, now my hands are tied.

[00:25:39] Speaker 00:
Mitigating factors are interesting because they're kind of cumulative.

[00:25:44] Speaker 00:
I've had a series of problems go way back.

[00:25:46] Speaker 00:
If you don't want to go all the way back to the prostitute that set me up, OK.

[00:25:52] Speaker 00:
But at least let's start with Hurricane Sandy.

[00:25:55] Speaker 00:
And then I've got my love of my life has got these problems.

[00:25:58] Speaker 00:
I've got a series of things going wrong in my life.

[00:26:02] Speaker 00:
And guess what somebody who has a proclivity to alcohol does when they have all those things going wrong in their life.

[00:26:13] Speaker 00:
One might, you were suggesting, well, you could poo-poo the business about the wife going to IANET to the immigration people, but it might be the single most important thing in his life.

[00:26:29] Speaker 02:
It may well be.

[00:26:31] Speaker 02:
The question before the deciding official and the arbitrator was whether that outweighs the severity of the misconduct.

[00:26:37] Speaker 03:
Well, if he didn't consider it, how would that question be addressed?

[00:26:43] Speaker 02:
I think going to Judge Clevenger's point just now, page 53 indicates that the arbitrator considered Mr. Koster's array of mitigating

[00:26:58] Speaker 02:
factors.

[00:26:59] Speaker 02:
Now, whether he... Well, there's no question.

[00:27:00] Speaker 00:
I read the transcript.

[00:27:02] Speaker 00:
I didn't get the whole transcript because you have it and we don't.

[00:27:05] Speaker 00:
But it's perfectly clear that at several stages, the arbitrator said, hey, wait a second.

[00:27:09] Speaker 00:
Slow down.

[00:27:09] Speaker 00:
I've got to get in the picture.

[00:27:11] Speaker 00:
I've got to know exactly what happened.

[00:27:13] Speaker 02:
That's correct, Your Honor.

[00:27:14] Speaker 00:
The arbitrator was clearly trying to understand what was going on.

[00:27:18] Speaker 00:
But hearing what went on and then having a set of rules about which of what you heard is relevant

[00:27:28] Speaker 00:
is what we're talking about.

[00:27:29] Speaker 02:
Sure.

[00:27:30] Speaker 02:
But why would the arbitrator spend time curing evidence on a factor that he, under Norris, didn't think he could consider, or pre-Norris didn't think he could consider?

[00:27:38] Speaker 00:
Good question, because nobody told him about Norris.

[00:27:41] Speaker 00:
You, in effect, said that, and no legal briefing, no what he said.

[00:27:48] Speaker 00:
The government certainly didn't say, or the agency didn't say, by the way, you should be aware of the fact that mitigating evidence not presented to the agency still has to be considered.

[00:27:59] Speaker 02:
I don't believe that the government tried to exclude this evidence, Your Honor.

[00:28:04] Speaker 02:
And again, the post-trial briefing closing statements are not in the record.

[00:28:10] Speaker 02:
But I don't believe that when this evidence came up at the hearing, the government attorney stood up and objected and said, hey, this is irrelevant.

[00:28:15] Speaker 00:
And you're not making an overarching Lachance-Deval argument.

[00:28:22] Speaker 00:
I mean, you cite Lachance against Deval for harm for a minor proposition in your brief on one page.

[00:28:30] Speaker 00:
Lachance against Duvall deals with a situation where, for example, an agent is going to remove somebody for two charges.

[00:28:39] Speaker 00:
And they say remove.

[00:28:40] Speaker 00:
It goes up on appeal and the arbitrator kicks one of the charges out.

[00:28:45] Speaker 00:
The arbitrator can still go ahead and enforce the penalty.

[00:28:51] Speaker 00:
But you're not making an argument that moves from the difference between kicking out a charge and kicking out a piece of

[00:28:58] Speaker 00:
evidence that goes to the question of penalty.

[00:29:03] Speaker 02:
Well, I think under Norris, the arbitrator can't kick out pieces of mitigating evidence.

[00:29:08] Speaker 02:
He has to consider them.

[00:29:10] Speaker 02:
But whether he gives them very little weight because of the severity of the misconduct, being drunk on duty, or because they're not persuasive otherwise.

[00:29:19] Speaker 00:
What we know about the evidence about the wife is he gave no weight to that at all.

[00:29:23] Speaker 00:
If you read over on page 54, you might be able to argue that as to some of the other bodies of evidence, he gave some consideration to it, but found a reason to not be moved by it.

[00:29:37] Speaker 02:
I think he wasn't moved by it because he says earlier on page 53 that the arbitrator.

[00:29:44] Speaker 03:
Time's up, so wrap up.

[00:29:46] Speaker 02:
That the grave severity of Mr. Koster's misconduct here outweighed what

[00:29:52] Speaker 02:
ever mitigating circumstances that way.

[00:29:54] Speaker 02:
And we respectfully request that you affirm this.

[00:29:56] Speaker 02:
Thank you.

[00:30:06] Speaker 01:
Just have two quick points to make.

[00:30:09] Speaker 01:
With regard to the prior disciplinary record, the deciding official only considered the inappropriate radio transmissions and they will charge.

[00:30:18] Speaker 01:
He didn't consider any breach of security or letters of reprimand or whatever they were.

[00:30:24] Speaker 01:
The second point I'd like to make is that the arbitrator, it's not that the arbitrator didn't weigh the mitigating factors that were not presented to the agency.

[00:30:32] Speaker 01:
He didn't consider them.

[00:30:33] Speaker 01:
It wasn't a question of weight.

[00:30:34] Speaker 01:
He simply absolved himself of having to look at them.

[00:30:38] Speaker 00:
Well, it's an interesting situation because we know he heard the argument.

[00:30:42] Speaker 01:
Correct.

[00:30:43] Speaker 01:
He did hear them and he affirmed everything.

[00:30:46] Speaker 00:
At great lengths.

[00:30:47] Speaker 01:
That was the thrust of the case was Officer Koster's ordeal during Sandy and his rehabilitation from alcoholism, which caused his conduct.

[00:30:57] Speaker 01:
But he expressly declined to consider them.

[00:31:02] Speaker 01:
If there's no more questions, I ask that the court reverse and remand this matter.

[00:31:08] Speaker 03:
Thank you, counsel.

[00:31:08] Speaker 01:
Thank you.

[00:31:09] Speaker 03:
This matter is submitted.

[00:31:11] Speaker 03:
Next case, please.