NOTE: This disposition is nonprecedential.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, Washing-
`ton, 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.
`
`
`
`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, Washing-
`ton, 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 arbi-
`tration 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 re-
`counted statements made by five individuals who report-
`ed 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 em-
`ployees off campus to their residences” and “followed
`other female employees around town.” Some of the wom-
`en 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 comple-
`tion of the pending . . . judicial proceedings associated
`with the conduct referenced in paragraph 2.”
`Paragraph 2 of the notice stated the basis for the pro-
`posed indefinite suspension:
`In July of 2014, the VA Police received several
`complaints from female employees of the Alexan-
`dria VA Healthcare System (AVAHCS) alleging
`that you were stalking them on VA property. The
`VA Police investigated the allegations and on Oc-
`tober 15, 2014, you were arrested by the AVAHCS
`
`1 The Louisiana statute defines stalking, in perti-
`nent part, as the “intentional and repeated following or
`harassing of another person that would cause a reasona-
`ble 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 em-
`ployee at the Alexandria VA Health Care System.
`On October 21, 2014, you were formally charged
`with four counts of stalking under Louisiana Re-
`vised Statute 14:40.2, which is punishable by a
`mandatory prison sentence. Based on the infor-
`mation 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 impris-
`onment 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 memoran-
`dum 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 is-
`sued 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 discipli-
`nary 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). How-
`ever, a proviso commonly referred to as the “crime provi-
`sion” 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 imprison-
`ment 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 statuto-
`ry 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 Janu-
`ary 20, 2016. Two days later, the VA sustained the pro-
`posed 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 conten-
`tion 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 agen-
`cy had satisfied the statutory requirement for invoking
`
`
`
`
`
` 6
`
` LOCKWOOD v. DVA
`
`the crime provision by showing that there was “reasona-
`ble 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 argu-
`ments that the VA failed to specify a condition subsequent
`that would terminate the suspension, since the suspen-
`sion 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 reasona-
`ble penalty under the circumstances.
`II
`This court reviews the decisions of arbitrators in fed-
`eral 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. Specifical-
`ly, 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 assis-
`tant 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 any-
`thing other than the one-sided, internal DVA police
`investigation.”
`In support of his challenge to the arbitrator’s “reason-
`able 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 determi-
`nation made following a preliminary hearing, or an in-
`dictment 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 re-
`quirement of reasonable cause to suspend.” Id.
`Based on that language from Dunnington, Mr. Lock-
`wood 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 argu-
`ment. The Dunnington court was concerned about an
`agency basing its reasonable cause determination exclu-
`sively 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 infor-
`mation, 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 analy-
`sis.” 956 F.2d at 1156. The Dunnington court noted that
`it was preferable for the agency to conduct its own inves-
`tigation 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 in-
`volving 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 “one-
`sided,” 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 infor-
`mation, 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 provi-
`sion 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 investiga-
`tion, the arrest, and the criminal charges provided rea-
`sonable 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 provi-
`sion 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 provi-
`sion.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 re-
`moval. 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 war-
`rant.” 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 Protec-
`tion Board proceedings). In any event, this argument is
`beside the point, as neither the notice of proposed indefi-
`nite suspension nor the arbitrator’s opinion relied on the
`existence of a warrant in addressing the issue of reasona-
`ble 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 re-
`spects. First, O’Keefe involved a failure to give the em-
`ployee 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 sus-
`pend an employee for more than 14 days only if the agen-
`cy can prove the charged misconduct and only if the
`penalty proposed “will promote the efficiency of the ser-
`vice.” 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 ad-
`dresses what is required to waive the 30-day notice re-
`quirement. 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 provi-
`sion under section 7513(b)(1).
`Second, quite apart from the December 2015 allega-
`tion, 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 compel-
`ling. 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 rea-
`sonable cause determination. The December 2015 stalk-
`ing allegation, which did not result in criminal charges,
`was of far less significance for the reasonable cause de-
`termination 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” con-
`cerning 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
`
`
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