NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

EDWARD J. LOCKWOOD,

Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent

______________________ 

2017-1489

______________________ 

Petition for review of an arbitrator’s decision in FMCS 

No. 16-54073-7 by Charles G. Griffin.

______________________ 

Decided: February 21, 2018

______________________ 

 STEPHEN E. JONES, Law Offices of Stephen E. Jones, 

P.C., Dallas, TX, argued for petitioner.

 SEAN SIEKKINEN, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by 

CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., REGINALD 

T. BLADES, JR. 

______________________ 

Before TARANTO, BRYSON, and STOLL, Circuit Judges.
2 LOCKWOOD v. DVA

BRYSON, Circuit Judge. 

Edward J. Lockwood petitions for review of an arbitration decision sustaining his indefinite suspension from 

employment with the Department of Veterans Affairs 

(“VA”). Because the arbitrator’s decision is supported by 

substantial evidence and is in accordance with law, we 

affirm.

I 

Mr. Lockwood is employed as a firefighter at the VA 

Medical Center near Alexandria, Louisiana. In July 2014, 

the VA police began an investigation into allegations that 

Mr. Lockwood was stalking female employees at the 

hospital facility. 

As part of the investigation, a VA police officer filed a 

series of police investigative reports in October 2014. In 

the initial report, dated October 2, 2014, the officer recounted statements made by five individuals who reported that Mr. Lockwood had followed female employees

around the medical campus; had entered an employee’s 

vehicle uninvited; had engaged in unwanted physical 

contact with one employee; and had “followed other employees off campus to their residences” and “followed 

other female employees around town.” Some of the women stated that Mr. Lockwood had made them feel uneasy 

and unsafe. 

A follow-up report dated October 7, 2014, described 

additional allegations of stalking, including a statement 

from one employee that Mr. Lockwood’s constant presence 

had caused her anxiety and fear. She added that she 

could not work late when needed “due to the fact that he 

is constantly around and watching her.” In another 

report, the officer described an incident that he personally 

observed in which Mr. Lockwood sprinted toward an 

employee and then followed a few paces behind her before 
LOCKWOOD v. DVA 3

abruptly leaving the area when he noticed the police 

officer’s presence. 

On October 15, 2014, two officers from the VA police 

department notified Mr. Lockwood that there was a 

warrant for his arrest and transported him to the local 

sheriff’s office where he was booked on three counts of 

stalking. The VA police then turned their file over to the 

district attorney’s office. The district attorney later 

charged Mr. Lockwood with four counts of stalking in 

violation of Louisiana Revised Statute 14:40.2.1 The VA 

did not take any adverse employment action against Mr. 

Lockwood at that time.

In December 2015, a new allegation of stalking by Mr. 

Lockwood prompted a review of Mr. Lockwood’s actions, 

which ultimately led to his suspension. On December 18, 

2015, he was placed on paid administrative leave. Then, 

on January 12, 2016, the VA sent Mr. Lockwood a notice 

proposing to suspend him indefinitely “until the completion of the pending . . . judicial proceedings associated 

with the conduct referenced in paragraph 2.”

Paragraph 2 of the notice stated the basis for the proposed indefinite suspension:

In July of 2014, the VA Police received several 

complaints from female employees of the Alexandria VA Healthcare System (AVAHCS) alleging 

that you were stalking them on VA property. The 

VA Police investigated the allegations and on October 15, 2014, you were arrested by the AVAHCS 

 

1 The Louisiana statute defines stalking, in pertinent part, as the “intentional and repeated following or 

harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress.” 

A first conviction is punishable by a fine and term of 

imprisonment of 30 days to one year.
4 LOCKWOOD v. DVA

Police Department and were transported to the 

Rapides Parish Sheriff’s Office where you were 

booked on three (3) counts of stalking. Following 

that arrest, you were charged with another count 

of stalking in connection with a fourth female employee at the Alexandria VA Health Care System. 

On October 21, 2014, you were formally charged 

with four counts of stalking under Louisiana Revised Statute 14:40.2, which is punishable by a 

mandatory prison sentence. Based on the information contained in the VA Police Investigative 

File, your subsequent arrest, and the nature of 

the charges pending against you, the Agency has 

reasonable cause to believe that you may have 

committed a crime for which a sentence of imprisonment may be imposed.

The notice continued: “Based on the seriousness of 

the offense and the incompatibility of the charges with 

your official duties . . . the alleged charges interfere with 

or adversely affect the Agency’s mission as a whole. . . . 

Your continued presence at this facility poses a threat to 

its orderly operation.” The proposed suspension was also 

supported by a memorandum from the Interim Health 

Care System Director, which addressed the 12 “Douglas

factors” bearing on the choice of penalty.2 The memorandum concluded that Mr. Lockwood posed a “continued 

threat to female employees,” that he “has had numerous 

counselings,” that his conduct has “apparently spanned 

several years,” that the potential for his rehabilitation 

 

2 In Douglas v. Veterans Administration, 5 M.S.P.R. 

280 (1981), the Merit Systems Protection Board listed 12 

factors to “be considered in determining the appropriate 

penalty for the subject employee.” Tartaglia v. Dep’t of 

Veterans Affairs, 858 F.3d 1405, 1408 (Fed. Cir. 2017).
LOCKWOOD v. DVA 5

was “seemingly poor,” and that he could not operate 

effectively as a firefighter under these circumstances.

The notice of proposed indefinite suspension was issued pursuant to 5 U.S.C. § 7513. Under that statute, an 

agency may impose a serious penalty, such as indefinite 

suspension, “only for such cause as will promote the 

efficiency of the service.” Id. § 7513(a). When a disciplinary action is proposed, an employee is normally entitled 

to 30 days’ advance written notice “stating the specific 

reasons for the proposed action.” Id. § 7513(b)(1). However, a proviso commonly referred to as the “crime provision” permits the agency to shorten that notice period 

when “there is reasonable cause to believe the employee 

has committed a crime for which a sentence of imprisonment may be imposed.” Id.; see 5 C.F.R. § 752.404(d)(1). 

In this case, the VA invoked the crime provision and 

reduced the length of the written notice period from the 

normal 30-day period and provided him with the statutory minimum of seven days to respond to the charges. See

5 U.S.C. § 7513(b)(2).

Mr. Lockwood orally responded to the notice on January 20, 2016. Two days later, the VA sustained the proposed indefinite suspension, effective January 27, 2016. 

The suspension was set to last “until the completion of the 

law enforcement investigation and any related judicial 

proceedings pertaining to this conduct.”

After an unsuccessful grievance proceeding, Mr. 

Lockwood invoked his right to arbitration. Following a 

hearing on August 18, 2016, the arbitrator upheld the 

suspension. In his opinion, the arbitrator rejected each of 

Mr. Lockwood’s challenges to the agency’s decision. 

First, the arbitrator rejected Mr. Lockwood’s contention that it was improper for the agency to invoke the 

crime provision, which reduced his written notice period 

to less than 30 days. The arbitrator found that the agency had satisfied the statutory requirement for invoking 
6 LOCKWOOD v. DVA

the crime provision by showing that there was “reasonable cause to believe” that Mr. Lockwood had “committed a 

crime for which a sentence of imprisonment may be 

imposed.” In particular, the arbitrator found that the 

agency had met the “reasonable cause” requirement based 

on “the 2014 VA police investigation, the recent stalking 

allegation,” and the fact that Mr. Lockwood was “awaiting 

trial on stalking charges.” 

Second, the arbitrator rejected Mr. Lockwood’s arguments that the VA failed to specify a condition subsequent 

that would terminate the suspension, since the suspension by its terms was set to end upon the completion of 

law enforcement and judicial proceedings in the stalking 

case. Third, the arbitrator ruled that the agency had 

shown that there was a nexus between Mr. Lockwood’s 

misconduct and the efficiency of the service, as required 

by 5 U.S.C. § 7513(a). Finally, the arbitrator concluded 

that an indefinite suspension pending the resolution of 

the charges against Mr. Lockwood was the only reasonable penalty under the circumstances.

II

This court reviews the decisions of arbitrators in federal employment disputes “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). 

An arbitrator’s decision must be affirmed unless it was 

not supported by substantial evidence, obtained without 

following procedures required by law, rule, or regulation, 

or was “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law.” 5 U.S.C. § 7703(c); 

Martin v. Dep’t of Veterans Affairs, 412 F.3d 1258, 1264 

(Fed. Cir. 2005). 

Mr. Lockwood raises three arguments on appeal, none 

of which is persuasive.
LOCKWOOD v. DVA 7

A 

First, Mr. Lockwood argues that the evidence cited by 

the VA was insufficient to satisfy the “reasonable cause” 

requirement for invoking the crime provision. Specifically, he contends that it was unreasonable for the VA to rely 

on the witness statements in the police reports, his arrest

(purportedly pursuant to an arrest warrant), and the 

charges in the criminal information signed by an assistant district attorney. He focuses in particular on the fact 

that a copy of the arrest warrant was not in the record 

and that, in any event, there was no evidence to suggest 

that an arrest warrant “would have been based on anything other than the one-sided, internal DVA police 

investigation.” 

In support of his challenge to the arbitrator’s “reasonable cause” finding, Mr. Lockwood relies on this court’s 

decision in Dunnington v. Department of Justice, 956 F.2d 

1151 (Fed. Cir. 1992). In that case, the Department of 

Justice proposed to indefinitely suspend Mr. Dunnington 

based on four criminal complaints and arrest warrants 

that were supported by statements from the complaining 

witnesses. Id. at 1153, 1156. The Dunnington court held 

that this evidence was adequate to find reasonable cause 

to invoke the crime provision, but it cautioned that “the 

mere fact of an arrest by the police is not, in and of itself, 

sufficient to provide reasonable cause under § 7513(b)(1).” 

Id. at 1157. The court further noted that arrest warrants 

are typically issued ex parte, “based on information from 

confidential informers, or other sources not subject to 

testing for credibility,” and therefore “it is incumbent 

upon the agency when an arrest warrant is a major part 

of the case to assure itself that the surrounding facts are 

sufficient to justify summary action by the agency.” Id. 

However, the court noted that “a formal judicial determination made following a preliminary hearing, or an indictment following an investigation and grand jury 

proceedings, would provide . . . more than enough evi-
8 LOCKWOOD v. DVA

dence of possible misconduct to meet the threshold requirement of reasonable cause to suspend.” Id. 

Based on that language from Dunnington, Mr. Lockwood argues that the VA acted improperly by relying on 

the VA investigation and the representation by the VA 

police that he was arrested pursuant to a warrant. At 

oral argument, Mr. Lockwood contended that “something 

more than the internal police investigation was required” 

and that Dunnington requires a third party to “objectively 

look[] at the facts to say that there was a probable cause 

determination.” 

Dunnington does not support Mr. Lockwood’s argument. The Dunnington court was concerned about an 

agency basing its reasonable cause determination exclusively on fact-finding by third parties: “The problem 

arises when an employee is arrested, with or without a 

warrant, or charged with a crime by indictment or information, with or without arrest. Here, the agency is not 

itself the fact-finder, but the activities of third parties . . . 

provide the agency with the factual record for its analysis.” 956 F.2d at 1156. The Dunnington court noted that 

it was preferable for the agency to conduct its own investigation and satisfy itself that reasonable cause exists: 

“Obviously, the best evidence of reasonable cause will be 

that determined by the agency after an appropriate 

investigation of the facts and circumstances of the alleged 

misconduct.” Id. at 1157. 

That is precisely what the VA did in this case. The 

VA police office received multiple allegations of unlawful 

activity and conducted a three-month investigation involving numerous witnesses and including observations 

by a VA police officer. Following that investigation, Mr. 

Lockwood was arrested and formally charged by the 

district attorney’s office. Rather than relying solely on 

the fact-finding of the prosecutor’s office, the VA found 

reasonable cause based upon its own investigation. 
LOCKWOOD v. DVA 9

Moreover, Mr. Lockwood’s argument that the evidence 

should be discounted because it is “ex parte” and “onesided,” is unpersuasive: an indictment returned by a 

grand jury is both ex parte and one-sided, but it provides 

“more than enough evidence of possible misconduct to 

meet the threshold requirement of reasonable cause.” 

Dunnington, 956 F.2d at 1157. 

Subsequent cases confirm that the VA’s evidence met 

the reasonable cause threshold. For example, in Smart v. 

Merit Systems Protection Board, 342 F. App’x 595 (Fed. 

Cir. 2009), this court suggested that a criminal information, standing alone, could be the basis for invoking 

the crime provision. Id. at 598. In Pararas-Carayannis v. 

Department of Commerce, 9 F.3d 955 (Fed. Cir. 1993), this 

court upheld the agency’s invocation of the crime provision based on a criminal charge, an affidavit from the 

investigating officer, and a criminal indictment. Id. at 

956, 958; see id. at 958 (“This was not a case of an agency 

suspension based merely on an arrest.”); see also Senyszyn 

v. Dep’t of Treasury, 200 F. App’x 990, 992 (Fed. Cir. 2006) 

(“The deciding official considered the criminal complaint 

and the accompanying sworn statement detailing the 

charges against Mr. Senyszyn. This was all the agency 

was required to do.”). Here, the VA’s extensive investigation, the arrest, and the criminal charges provided reasonable cause sufficient to satisfy the crime provision. 

See Cooke v. Soc. Sec. Admin., 125 F. App’x 274, 277 & n.2 

(Fed. Cir. 2004) (affirming application of the crime provision after the agency conducted an initial investigation 

that led to a criminal complaint). The arbitrator did not 

abuse his discretion in sustaining the VA’s finding that 

there was reasonable cause to invoke the crime provision.3

 

3 Mr. Lockwood argues that “[i]n the absence of an 

actual warrant, the [VA’s] reliance on a mere assertion 
10 LOCKWOOD v. DVA

B 

Mr. Lockwood next contends that in finding that the 

VA had reasonable cause to believe that Mr. Lockwood 

had committed a crime punishable by imprisonment, the 

arbitrator improperly relied on evidence not included in 

the January 12, 2016, proposal notice. Mr. Lockwood 

notes that the proposal notice only addressed the stalking 

incidents from 2014 and the investigation and criminal 

charges that stemmed from those incidents. It was error, 

he contends, for the arbitrator to refer to the December 

2015 stalking allegation in the course of finding that the 

agency had reasonable cause to place Mr. Lockwood on 

indefinite suspension. 

In support of his position, Mr. Lockwood cites O’Keefe 

v. U.S. Postal Service, 318 F.3d 1310 (Fed. Cir. 2002). In 

that case, the Merit Systems Protection Board upheld an 

agency’s removal action and based its decision in part on 

evidence outside the scope of the notice of proposed removal. Id. at 1312–13. This court reversed, holding that 

“[o]nly the charge and specifications set out in the Notice 

may be used to justify punishment because due process 

requires that an employee be given notice of the charges 

 

that a warrant existed is unreasonable.” He adds that 

“[t]here was no evidence then, nor is there any now, that 

Mr. Lockwood was arrested pursuant to a judicial warrant.” However, there is no applicable evidentiary rule 

prohibiting the agency from relying on a police report to 

establish the existence of a warrant. See Kewley v. Dep’t 

of Health & Human Servs., 153 F.3d 1357, 1364 (Fed. Cir. 

1998) (hearsay rule inapplicable in Merit Systems Protection Board proceedings). In any event, this argument is 

beside the point, as neither the notice of proposed indefinite suspension nor the arbitrator’s opinion relied on the 

existence of a warrant in addressing the issue of reasonable cause.
LOCKWOOD v. DVA 11

against him in sufficient detail to allow the employee to 

make an informed reply.” Id. at 1315. The court added 

that “[b]y accusing O’Keefe of specific misdeeds that were 

not within the scope of the Notice of Proposed Removal, 

the Board has exceeded the scope of its review of the 

agency’s decision.” Id. 

This case differs from O’Keefe in two important respects. First, O’Keefe involved a failure to give the employee notice of the charges on which his removal was 

based. In this case, by contrast, Mr. Lockwood was given 

notice of the 2014 stalking allegations, which were the 

charges that formed the basis for the VA’s decision to 

suspend him. As the VA explained in response to Mr. 

Lockwood’s grievance, the December 2015 “allegation of 

on-duty misconduct by Mr. Lockwood prompted a review 

of the employee’s actions.” Thus, the VA considered the

December 2015 allegation, but only “[i]n conjunction with 

Mr. Lockwood’s arrest and charges,” and only in further 

support of its conclusion that there was reasonable cause 

to believe that Mr. Lockwood had committed a crime for 

which a sentence of imprisonment could be imposed.

Mr. Lockwood’s argument that O’Keefe is like this 

case conflates two separate statutory provisions. First, 

the statute at issue in O’Keefe allows an agency to suspend an employee for more than 14 days only if the agency can prove the charged misconduct and only if the 

penalty proposed “will promote the efficiency of the service.” 5 U.S.C. § 7513(a). Second, and separately, the 

statute at issue in this case allows an agency to initiate 

such a suspension without providing at least 30 days’ 

written notice only if the agency has reasonable cause to 

believe the employee has committed an imprisonable

crime. Id. § 7513(b)(1). The former addresses what is 

required to sustain a suspension, while the latter addresses what is required to waive the 30-day notice requirement. See Perez v. Dep’t of Justice, 480 F.3d 1309, 

1311 (Fed. Cir. 2007). 
12 LOCKWOOD v. DVA

The O’Keefe case requires advance written notice of 

the charges that are used to support the disciplinary 

action under section 7513(a). However, O’Keefe does not 

require advance written notice of every piece of evidence 

addressed by an agency in assessing those charges, Pope 

v. U.S. Postal Serv., 114 F.3d 1144, 1148 (Fed. Cir. 1997), 

and nothing in O’Keefe suggests that an employee must be 

given advance notice of every piece of evidence referred to 

by the Merit Systems Protection Board or an arbitrator in 

reviewing an agency’s decision to invoke the crime provision under section 7513(b)(1).

Second, quite apart from the December 2015 allegation, the evidentiary basis for the arbitrator’s decision 

sustaining the agency’s finding of reasonable cause to 

believe Mr. Lockwood had committed a crime is compelling. As the arbitrator pointed out, that evidence includes 

the multiple incidents of stalking detailed in the 2014 

police reports; the formal criminal charges brought 

against Mr. Lockwood; and the fact that those charges 

were still pending at the time the agency made its reasonable cause determination. The December 2015 stalking allegation, which did not result in criminal charges, 

was of far less significance for the reasonable cause determination than the 2014 allegations. Thus, unlike in 

O’Keefe, where the improperly considered evidence was 

critical to the removal decision, any impropriety in the 

arbitrator’s reference to the 2015 stalking allegation was

harmless error.

C 

Finally, Mr. Lockwood argues that in sustaining the 

agency’s “reasonable cause” determination, the arbitrator 

improperly relied on the fact that Mr. Lockwood “was 

awaiting trial on stalking charges.” He contends that 

there was no evidence in the record to show that he was 

awaiting trial in January 2016.
LOCKWOOD v. DVA 13

The record is to the contrary. The suspension notice 

of January 22, 2016, directed Mr. Lockwood to inform the 

agency “upon the completion of the law enforcement 

investigation and any related judicial proceedings” concerning the charged conduct, and Mr. Lockwood did not 

suggest in response that those proceedings had concluded. 

In fact, the summary of Mr. Lockwood’s oral response to 

the notice of proposed indefinite suspension reflects that 

on January 20, 2016, Mr. Lockwood acknowledged that 

two of the four charges against him remained pending. In 

addition, the deciding official noted in his Douglas factors 

memorandum that as of January 22, 2016, two of the 

charges against Mr. Lockwood had been dismissed, but he 

was still awaiting trial on the remaining charges. There 

was thus ample evidence in the record from which the 

arbitrator could find that as of the time of his suspension, 

Mr. Lockwood was still awaiting trial on at least some of 

the stalking charges.

No costs.

AFFIRMED