N OTE : This disposition is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

______________________

EDWARD J. LOCKWOOD,
Petitioner

v.

DEPARTMENT OF VETERA NS AFFAIRS, Respondent

______________________

2017

- 1489

______________________

Petit ion for review of an arbitrator’ s decision in FMCS
No. 16

- 54073

- 7 by Charles G. Griffin.

______________________

Decided: February 21, 2018

______________________

S TEPHEN E. J ONES , Law Offices of Stephen E. Jones, P.C., Dallas, TX, argued for petitioner.

S EAN S IEKKINEN , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washin gton, DC, argued for respondent. Also represented by
C HAD A. R E ADLER

, R OBERT E. K IRSCHMAN

, J R

., R EGINALD T. B LADES

, J R

.

______________________

Before T ARANTO

, B RYSON

, and S TOLL

, Circuit Judges

.LOCKWOOD v. DVA 2

B RYSON

, Circuit Judge

. Edward J. Lockwood petitions for review of an arb itration 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 th e investigation, a VA pol ice officer filed a series of police investigative reports in October 2014. In the initial report, dated October 2, 2014, the officer r ecounted statements made by five individuals who repor ted that Mr. Lockwood had followed female employees
around the med ical campus ; had entered an employee’s
vehicle uninvited ; had engaged in unwanted physical contact with one employee; and had “followed other e mployees off campus to their residences” and “followed other female employees around town.” Some of the wo men st ated 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
ha d 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 sprin ted toward an employee and then followed a few paces behind her beforeLOCKWOOD 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 cou nts 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 act ions, which ultimately led to his suspension. On December 18, 2015, he was placed on paid administrative leav e. Then,

o n January 12, 2016, the VA sent Mr. Lockwood a notice proposing to suspend him indefinitely “ until the compl etion of the pending . . . judicial proceedings associated with the conduct referenced in paragraph 2.”

Paragraph 2 of the notice stated the basis for the pr oposed indefinite suspension:

In July of 2014, the VA Police received several complaints from female employees of the Alexa ndr ia VA Healthcare System (AVAHCS) alleging that you were stalking them on VA property. The VA Police investigated the allegations and on O ctober 15, 2014, you were arrested by the AVAHCS

1 The Louisiana statute defines stalking , in pert inent part, as the “intentional and repeated following or
haras s ing of another person that would cause a reason able person to feel alarmed or to suffer emotional distress. ” A first conviction is punishable by a fine and term of impri s onment of 30 days to one year.LOCKWOOD v. DVA 4

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 e mployee at the Alexandria VA Health Care System. On October 21, 2014, you were formally charged with four counts of stalking under Louisiana R evised Statute 14:40.2, which is punishable by a mandatory prison sentence. Based on the info rmation contained in the VA Police Investigative File, your subsequent arrest, and the nature of
th e charges pending against you, the Agency has reasonable cause to believe that you may have committed a crime for which a sentence of impri sonment may be imposed.

The notice continued: “Based on the seriousness of the offense and the incompatibility of th e 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

su pported by a memorandum from the Interim Health Care System Director, which addressed the 12 “ Douglas
factors ” bearing on the choice of penalty. 2 The memora ndum concluded that Mr. Lockwood posed a “continued threat to female employees,” that he “has had n umerous 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 firefigh ter under these circumstances.

The notice of proposed inde finite suspension was i ssued pursuant to 5 U.S.C. § 7513. Under that statute, a n

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 discipl inary 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). Ho wever, a proviso commonly referred to as the “crime prov ision” permits the agency to shorten that notice period
whe n “there is reasonable cause to believe the employee has committed a crime for which a sentence of impriso nment 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 fr om the
normal 30

- day period and provided him with the statut ory 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 Jan uary 20, 2016. Two days la ter, the VA sustained the pr oposed 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 agen cy’s decision.

First, the arbitrator rejected Mr. Lockwood’s conte ntion 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 age ncy had satisfied t he statutory requirement for invokingLOCKWOOD v. DVA 6

the crime provision by showing that there was “reason able 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

a gency had met th e “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, t he arbitrator rejected Mr. Lockwood’s arg uments that the VA failed to specify a condition subsequent that would terminate the suspension, since the suspe nsion 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
mis conduct and the efficiency of the service, as required by 5 U.S.C. § 7513(a). Finally, the arbitrator concluded that an indefinite suspen sion pending the resolution of the charges against Mr. Lockwood was the only reason able penalty under the circumstances.

II

T his court reviews the decisions of arbitrators in fe deral 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

n ot 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 accordanc e 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 t hree 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 f or invoking the crime provision . Specifica lly, 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 assi stant 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 war rant “would have been based on an ything other than the one

- sided

, internal DVA police investigation.”

In support of his challenge to the arbitrator’s “reaso nable 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
witness es

. 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 cou rt 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 maj or part of the case to assure itself that the surrounding facts are sufficient to j ustify summary action by the agency.” Id. However, t he court noted that “a formal judicial determ ination made following a preliminary hearing, or an i ndictment following a n investigation and grand jury proceedings, would provide . . . more than enough ev i-LOCKWOOD v. DVA 8

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

Based on th at language from Dunnington , Mr. Loc kwood argues that the VA acted improperly by relying on the VA investigation and the representation by the VA police that he was arrest ed pursuant to a warrant. At oral argument, Mr. Lockwood contended that “something more than the internal police investig ation was required”
and that D unnington 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 arg ument. The Dunnington court was concerned about an

agen cy basing its reasonable cause determination excl usively 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 info rmation, 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 anal ysis. ” 956 F.2d at 1156

. The Dunnington court noted that it was preferable for the agency to conduct its own inve stig ation and satisfy itself that reasonable cause exists:
“O bviously, 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

.
Th at is precisely what the VA did in this case . T he VA police office received multiple allegations of un lawful activity and conducted a three

- month investigation i nvolving numerous witnesses and including observations by a VA police officer . Fo llowing 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 up on its own investigation.LOCKWOOD v. DVA 9

Moreover, Mr. Loc kwood’s argument that the evidence
should be discounted because it is “ ex parte ” and “one

sided ,” is unpersuasive: a n 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 info rmation, standing alone, could be the basis for invoking the crime provision. Id. at 598. I n Pararas

- Carayannis v. Department of Commerce , 9 F.3d 955 (Fed. Cir. 1993)

, this

c ourt up held the a gency’s invocation of the crime prov ision 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 a lso 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, t he VA’s extensive investig ation, the a rrest, and the criminal charge s provide d re asonable 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 prov ision 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 prov ision. 3

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

ac tual warrant, the [VA’s] reliance on a mere assertionLOCKWOOD v. DVA 10

B

Mr. Lo ckwood next contends that in finding that t he
VA had reasonable cause to believe that Mr. Lockwood had committed a crime punishable by imprisonment, th e arbitrator improperly relied on evidence not included in
the January 12, 2016, proposal notice. Mr. Lo ckwood

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 allega tion 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 r emoval. Id. at 1312

– 13. This court reversed, holding that “[o] nly the charge and specifications set o ut 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 wa rrant.” However, there is no applicable evidentiary rule prohibi t ing 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, 13 64 (Fed. Cir. 1998) (hearsay rule inapplicable in Merit Systems Prote ction 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 reason able 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 acc using 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 r espects. First, O’Keefe i nvolved a failure to give the e mployee 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

s uspend 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 age ncy can prove the charged misconduct and only if the

p enalty proposed “ will promote the efficiency of the se rvice.” 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 agen cy has reasonable cause to believe the employee has committed a n imprisonable
crime. Id. § 7513(b)(1). The former addresses what is required to sustain a suspension, while the latter a ddresses what is required to waive the 30

- day notice r equirement. See Perez v. Dep’t of Justice , 480 F.3d 1309, 1311 (Fed. Cir. 2007).LOCKWOOD v. DVA 12

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 prov ision under section 7513(b)(1).

Second, quite apart from the December 2015 alleg ation, the evidentiary basis for the arbitrator’s decision sustaining the agency’s finding of reasonable cause to
believe Mr. Lockwood had committed a crime i s compe lling. As the arbitrator pointed out, that evidence include s the multiple incidents of stalking detailed in the 2014 police reports ; the form al criminal charges brought against Mr. Lockwood ; and the fact that those charges were still pending at the time the agency made its re asonable cause determination. The December 2015 stal king allegation, which did not result in criminal charges,
was of fa r less significance for th e 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 stalkin g allegation w as 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
th ere 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” co ncerning 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 indefinit e 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 th us ample evidence in the record from which the arbitrator could find that as of the time of his suspension, Mr. Lockwood was still awaiting tri al on at least some of the stalking charges.

No costs.

AFFIRMED