we will hear argument first this morning in number seven dash fourteen eighty nine the lockwood against department of veterans affairs  discretion when he determined that the department of veterans affairs having invoked the crime exception had reasonable cause to be indefinitely suspended struck wood and so while the crime exception shortens the notice period five u s c a seventy five thirteen years in the requires that the advanced notice state the specific reasons for the proposed actions and when the reviewing official goes beyond the scope of that notice this court has held that that is extra record or in any event outside let's call it that that the notice and just look at what was in the notice what what is that set of material yes the notice that specifically referenced and what's what's the status of and just correct me if my memories are of the police report that referred to an arrest warrant yes and that's all we know from the record is that the investigating and e and in the subsequently there was an information or a charging instrument that c if i understand it it seems to me there are two separate issues here and correct me if you see it differently but the first issue is whether it was permissible under the circumstances with the crime exception to reduce the period of notice from the what is otherwise he's entitled to under seventy five thirteen b i guess it is b b two from thirty days to some lesser period the second issue is whether a suspension is justified for the efficiency of the service and those seem to me to be two separate issues as to the second that's the issue as to the notice of events in two thousand and fourteen were that no discipline referred to the events of two thousand and fourteen but not the event in two thousand and fifteen but as to the first question whether  e period of of notice could be reduced from thirty days it seems to me is it not perfectly permissible for them to have considered all the circumstances including the december two thousand and fifteen and in determining whether the crime exception applied in other words they had a number of different pieces of evidence that pertain to whether there was reasonable cause to believe a crime it can that committed it was ok under those circumstances to look at the december is it seemed to me as i read the the opinion of the arbitrator the the opinion suggests to me that a lot of the focus was on the question of reasonable cause to believe that a crime had been committed which goes to the reduction in the notice period and not to the propriety of the suspension ultimately that was imposed but if it was ok for the arbitrator to consider the december two thousand and fifteen evidence with respect to the cause goes to the reduction of the notice period right it doesn't go to the ultimate question of whether the the suspension was permissible right under the i guess it's seventy eight seventy or seventy so he could consider that december night twenty fifteen if that with respect to the reasonable cause for reduction in the notice could he not and i would submit that that was impermissible i say ok there was no other evidence that there was a war at that point why should more evidence of the existence of the arrest warrant be necessary if you don't you didn't present any evidence the statement that there was such an arrest warrant was incorrect and i don't think we're operating under i don't know best evidence or of the federal rules of evidence or anything like that so it not sufficient to for there to be evidence that there was an arrest warrant which would perhaps bring this make this ok that cunningham i i think have that gives it a greater degree of reliability than you would have without that put in i would submit that in under the circumstances of this case that that something more then the internal police why he was never questioned about any of those allegations about it history he may or may not have had with the queues or they simply took the the statement of the alerting witnesses and saying in your appeal to us are you arguing both that the suspension happened too fast they way in less than thirty days and that the suspension even if the timing of it the notice period that was required in this case under the crime provision and if you look at the statement of the issues presented on page one and two accounts holding brief it's clear that it's the only issue that was raised in the do with the validity of the ultimate sanction that was imposed as opposed to the procedure that was employed in imposing that section correct and if you look at page four of the arbitrator's decision which is that appendix four you'll  the standard as the arbitrator set out based on dunning ten and several other cases and that is called to prove that indefinite suspension under the crime provision is valid therefore things that what you look at the first is reasonable cause the second is i'm sorry i'm sorry that was appendix four page four of our writers  may not need to use that term reasonable cause meant that was also was it not the basis for determining that the efficiency of a server the service would be affected by his remaining on the job not being suspended so it might just be you're using the same language to cover two different points and then he has a point about whether for the substantive non procedural use of that question there was whether the arbitrator looked at material that he should not have looked at i think that there are two separate issues and i if i understand your point correctly i would agree  that i think that the reasonable cards standard what is perhaps somewhat conflated at certain points in the arbitrator's opinion but i don't think that changes the fact that there are separate issues in the most important issue that i  how does this statement on appendix page for the you just referred to how does it help your position that reasonable cause that only been relates to the procedure only relates to the procedure our position is that reasonable cause relevant in this case only to the extent that the crime provision states that the notice period may be reduced from thirty days to a little seven days if there is reasonable cause to believe that an appropriate crime has been committed but but that quote from the handbook looks like issue of procedural correctness well i'm looking at it before separate issues as they're set out on page four in the first one is there appears to me to be the reasonable cause requirement and then the third one is is whether there is a nexus between the criminal charge the efficiency  right and the nexus between the efficiency of the service and the penalty the reasonable so the penalty go to the substantive issue but the first the reasonable cause to believe a crime has been committed at least the language used there is taken from the how am i supposed to know that one is this going to the thirty day profession and not to the overall suspension that i would look at the language of the statute of seventy five thirteen the says that and the only issue on appeal as as presented to them and once opening brief is whether there was reasonable cause to believe that a qualifying crime had been committed and for the first time an  brief he now argues that he makes an entirely different argument that his suspension impermissibly excuse exceeded the scope of the written notice and this is something that was not only not presented in his opening brief but more importantly it was not presented distinct incidents doesn't that seem like the kind of thing that you know this is necessary could be given up not just an additional fact that supports the allegation we've already made about the same conduct i would say in deciding official was to the purpose for which he relied on evidence of the extent to which affect its decision making process i think if you look at all of the evidence in the record here it's clear that it did not have any effect on the ultimate outcome but mr lockwood never raised this before the arbitrator or the agency so there's the agency never had a chance to explain to the arbitrator for instance that i would have made the same decision regardless and this court has consistently held reason why if this court were to entertain this belated argument that mr lockwood raises now for the first time in his reply brief in this case it deprives the agency and the board of the opportunity to address them first instance and there's no past fall is that right i believe it was in november when we fall or briefed us and so i have not gone back and checked in the last couple of lines but this is another important point your honor one of mr lockwood's primary arguments in his opening brief and also before the arbitrator that it was somehow an error for the agency to to suspend him without affirmatively producing evidence on his own to show that his trial of not yet occurred but the notice that he received of his suspension clearly informed him misstated in our brief that it was his responsibility is logically it would have to be to come back to the agency and inform them when his when his trial was was over and when the investigation was complete and there's no evidence in the record to suggest that that the case was settled or resolved arsonist mr lockwood has never argued otherwise he simply claims without support that that for some reason that was the agency's burden to produce evidence showing that the trial to dress the issue the proper remedy would not be to order the t v reinstated the proper remedy would be to to remain for the further factual development that never happened because mr locke never raised this issue let me ask you one question about the record the joint appendix looks like it is collective bargaining agreement master labor agreements and title that is is that the document that governs this proceeding as far as was the arbitrator in fact adjudicating this proceeding under the agreement or was the arbitrator adjudicating the proceeding under the statute if piers to be bokes arbitrator's decision references both the pretty much why i think it's not exactly the statutory law pretty much and it says except where the crime provisions have been invoked and presumably that's a reference to the crime provisions of the agreement right not the crime of the statute at least there's no indication the country i'm not aware of any indication of contrary my assumption in reading that is that it was referring to the crime provision in seventy five thirteen b but i don't know whether there might be another  or it well i looked at the rest of the agreement that we have and i didn't see any crime perforations and that doesn't mean there are some there but you know if there are any crime provisions somewhere in the rest of the agreement parts of the agreement that we don't have