[00:00:05] Speaker 03:
We will hear argument first this morning in number 17-1489, Lockwood against Department of Veterans Affairs.

[00:00:18] Speaker 03:
Mr. Jones, whenever you're ready.

[00:00:35] Speaker 01:
Good morning.

[00:00:36] Speaker 01:
Good morning, your honors, and may it please the court.

[00:00:38] Speaker 01:
My name is Stephen Jones, and I'm representing Mr. Lockwood, the petitioner in this matter.

[00:00:44] Speaker 01:
There are two brief points that I would like to highlight for you this morning to show why the arbitrator, Mr. Charles Griffin, abused his discretion when he determined that the Department of Veterans Affairs, having invoked the crime exception, had reasonable cause to indefinitely suspend Mr. Lockwood.

[00:01:01] Speaker 01:
And so while the crime exception shortens the notice period,

[00:01:05] Speaker 01:
5 USC 7513 still requires that the advance notice state the specific reasons for the proposed actions.

[00:01:14] Speaker 01:
And when the reviewing official goes beyond the scope of that notice, this court has held that that is an abuse of discretion.

[00:01:22] Speaker 01:
So in pages 13 and 14 of the opening brief and the first three pages of the class brief, I point you to O'Keefe versus United States Postal Service.

[00:01:33] Speaker 01:
And in that decision, this court held that the review of an agency's decision is limited to the charge and specifications.

[00:01:41] Speaker 03:
Can I ask you?

[00:01:42] Speaker 03:
Yes.

[00:01:42] Speaker 03:
If you put aside the material that you identify as either extra record or in any event outside, let's call it the notice, and just look at what was in the notice, what is that set of material?

[00:02:01] Speaker 01:
Yes.

[00:02:01] Speaker 01:
The notice specifically

[00:02:03] Speaker 01:
referenced stalking allegations alleged against Mr. Lockwood dated July of 2014 and October of 2014.

[00:02:10] Speaker 01:
That was all that was in the notice, those specific allegations.

[00:02:16] Speaker 01:
When the arbitrator, in determining that under the crime exception there was reasonable cause, held that the agency was justified in also considering a 2015 stalking allegation that was not in the proposed notice

[00:02:31] Speaker 01:
that Mr. Lockwood was never made aware of.

[00:02:34] Speaker 03:
What's the status of, and just correct me if my memory is wrong, a police report that referred to an arrest warrant?

[00:02:43] Speaker 01:
Yes.

[00:02:44] Speaker 01:
And that's all we know from the record is that the investigating and arresting local VA police officers approached Mr. Lockwood on October 15th of 2014 and stated to him, we have a warrant for your arrest.

[00:02:58] Speaker 01:
And at that point, they escorted him down to the local parish district attorney's office.

[00:03:04] Speaker 01:
And subsequently, there was an information or a charging instrument that was signed by the district attorney.

[00:03:13] Speaker 00:
Now, you mentioned that the notice letter only had an October 15, 2014 incident, I guess.

[00:03:21] Speaker 00:
But didn't it refer to the police investigation file, which actually, in fact, had

[00:03:28] Speaker 00:
multiple incidents and provided accounts, as well as the police officer's own observations?

[00:03:36] Speaker 01:
Yes, Judge Stoll.

[00:03:37] Speaker 01:
And I apologize if I indicated that the notice letter referenced the 2015.

[00:03:41] Speaker 01:
The notice letter and the police investigation report only captured 2014 allegations.

[00:03:49] Speaker 01:
But yes, it did reference the police investigation of the 2014 allegations.

[00:03:54] Speaker 01:
There was never a reference of what was alleged to have occurred in 2015.

[00:03:58] Speaker 04:
Let me see if I understand.

[00:04:01] Speaker 04:
It seems to me there are two separate issues here.

[00:04:04] Speaker 04:
And correct me if you see it differently.

[00:04:07] Speaker 04:
But the first issue is whether it was permissible under the circumstances with the crime exception to reduce the period of notice from what is otherwise is entitled to under 7513 B, I guess it is, B2.

[00:04:26] Speaker 04:
from 30 days to some lesser period.

[00:04:30] Speaker 04:
The second issue is whether a suspension is justified for the efficiency of the service.

[00:04:36] Speaker 04:
And those seem to me to be two separate issues.

[00:04:39] Speaker 04:
As to the second, that's the issue as to which the notice of events in 2014 were that notice referred to the events of 2014 but not the event in 2015.

[00:04:55] Speaker 04:
But as to the first question, whether the period of notice could be reduced from 30 days, it seems to me, is it not perfectly permissible for them to have considered all the circumstances, including the December 2015 incident, in determining whether the crime exception applied?

[00:05:15] Speaker 04:
In other words, they had a number of different pieces of evidence that pertained to whether there was reasonable cause to believe a crime had committed

[00:05:24] Speaker 04:
It was OK under those circumstances to look at the December 15 event, was it not?

[00:05:31] Speaker 01:
Well, Judge Bryson, I would submit that the issue is one of due process, because the notice letter, Mr. Leckwood was never given an opportunity to respond to the 2015 allegation.

[00:05:44] Speaker 01:
As he was able to do, there was an oral reply that he participated in just prior to the agency's decision

[00:05:52] Speaker 04:
Well, let me just clarify what I'm trying to get at.

[00:05:56] Speaker 04:
It seemed to me, as I read the opinion of the arbitrator, 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.

[00:06:19] Speaker 04:
But if it was OK for the arbitrator to consider the December 2015 evidence with respect to the issue of the propriety of the notice reduction, then what's the problem in the arbitrator's opinion, as you see it?

[00:06:36] Speaker 01:
As I see it, Judge Bryson, is that the arbitrator specifically held in finding that this 2015 allegation

[00:06:47] Speaker 01:
was that the reasonable cause is rooted in this 2015 allegation that he says that the agency was right.

[00:06:55] Speaker 04:
Right.

[00:06:55] Speaker 04:
But reasonable cause goes to the reduction of the notice period, right?

[00:06:59] Speaker 04:
It doesn't go to the ultimate question of whether the suspension was permissible, right?

[00:07:07] Speaker 04:
Under, I guess it's 7513B1 is the

[00:07:15] Speaker 04:
reasonable cause requirement, and 7513A is the suspension, the justification of the suspension.

[00:07:26] Speaker 04:
Correct.

[00:07:26] Speaker 04:
So he could consider the December 2015 event with respect to the reasonable cause for reduction in the notice.

[00:07:37] Speaker 04:
Could he not?

[00:07:38] Speaker 04:
I would submit that that was impermissible.

[00:07:40] Speaker 01:
I see.

[00:07:41] Speaker 01:
OK.

[00:07:41] Speaker 01:
The consideration of that was the discretion.

[00:07:45] Speaker 03:
Could he have considered in your view the existence of the arrest warrant?

[00:07:54] Speaker 01:
So all we know is that in the 2014 VA police investigative file, that it was a local on-site investigation, the investigating and arresting police officer states to Mr. Lockwood that we have a warrant for your arrest.

[00:08:14] Speaker 01:
no other evidence that there was a warrant.

[00:08:18] Speaker 03:
Why should more evidence of the existence of the arrest warrant be necessary?

[00:08:26] Speaker 03:
You didn't present any evidence that the statement that there was such an arrest warrant was incorrect.

[00:08:33] Speaker 03:
And I don't think we're operating under the best evidence rule of the federal rules of evidence or anything like that.

[00:08:43] Speaker 03:
Why is it not sufficient for there to be evidence that there was an arrest warrant, which would perhaps make this OK under the Cunningham idea?

[00:08:56] Speaker 03:
I think I have the name.

[00:08:57] Speaker 03:
Dunnington.

[00:08:58] Speaker 03:
What is it?

[00:08:59] Speaker 03:
Dunnington, sorry.

[00:09:00] Speaker 03:
Dunnington.

[00:09:01] Speaker 03:
Where there's evidence of somebody other than the police, some sort of judicial official, presumably, issuing the warrant.

[00:09:13] Speaker 03:
that gives it a greater degree of reliability than you would have without that?

[00:09:19] Speaker 01:
Well, and I would submit that under the circumstances of this case, that something more than the internal police investigation was required.

[00:09:30] Speaker 01:
Because you had an internal investigation where the police questioned everyone except Mr. Lockwood.

[00:09:36] Speaker 01:
He was never questioned about why he was in the same gym that every other employee had access to in the VA parking lot.

[00:09:43] Speaker 01:
He was never questioned about any of those allegations, about any history he may or may not have had with the accusers.

[00:09:50] Speaker 01:
They simply took the statements of the alleged witnesses and made the arrest.

[00:09:59] Speaker 01:
And so in other cases where there's been an indictment, or even as in Dunnington, there was a magistrate that found probable cause and issued the warrant.

[00:10:11] Speaker 01:
There was no third party that objectively looked at the facts to say that there was a probable cause of termination.

[00:10:19] Speaker 01:
It was solely relied upon based on the local on-site VA police officers.

[00:10:24] Speaker 03:
And can I just clarify something, which I think just picks up on what Judge Bryson was saying.

[00:10:29] Speaker 03:
In your appeal to us, are you arguing both that the suspension happened too fast, namely in less than 30 days, and that the suspension

[00:10:40] Speaker 03:
even if the timing of it was OK, was unjustified, or are you just arguing that it happened too fast?

[00:10:50] Speaker 01:
I believe I'm arguing both, Judge Rancho.

[00:10:53] Speaker 01:
The argument I'm raising is one, that having invoked the crime exception, that the reasonable cause was not met because the arbitrator exceeded the scope of the proposed notice.

[00:11:06] Speaker 01:
And then also,

[00:11:08] Speaker 01:
And actually, I guess that point addresses both of your statements, I believe, because the arguments rest on the fact that the agency, the arbitrator, I'm sorry, exceeded the scope of the proposed notice, and therefore he amuses discretion when he arrested the reasonable cause under the crime exception specifically on the 2015 allegation.

[00:11:32] Speaker 03:
And the putting aside the timing,

[00:11:35] Speaker 03:
question, namely that this took place in seven days and not 30.

[00:11:40] Speaker 03:
Reasonable cause is or is not the standard for judging whether the indefinite suspension was justifiable.

[00:11:51] Speaker 03:
Isn't that just efficiency of the service, or is it?

[00:11:55] Speaker 01:
Well, that is, under the crime exception, that is certainly one of the things that the court looks to to see whether or not

[00:12:05] Speaker 01:
having invoked that exception, that it's applicable.

[00:12:08] Speaker 01:
And I would concede that if the agency had given Mr. Lockwood a complete 30 days notice not having invoked the crime exception, that we probably wouldn't be here.

[00:12:18] Speaker 01:
But because they took that extraordinary step, then there is a heightened review that requires the reasonable cause, that triggers the reasonable cause analysis.

[00:12:28] Speaker 01:
And under that analysis, we submit that because the arbitrator

[00:12:34] Speaker 01:
included or an allegation that was not invoked by the agency in the notice that he abuses discretion.

[00:12:41] Speaker 01:
And I only reserved 12 minutes for it to open.

[00:12:44] Speaker 01:
So I see that.

[00:12:45] Speaker 03:
Well, you have three minutes.

[00:12:46] Speaker 03:
You can use it now, or you can use it on rebuttal.

[00:12:50] Speaker 03:
But not both.

[00:12:51] Speaker 03:
I'll see you in the remaining time for rebuttal, unless you have some additional questions.

[00:12:54] Speaker 03:
No, thank you very much.

[00:13:02] Speaker 03:
Mr. Sikinen?

[00:13:04] Speaker 03:
Yes, Your Honor.

[00:13:06] Speaker 03:
You can correct me if I've mispronounced it.

[00:13:09] Speaker 02:
That is the closest correct pronunciation that I have ever received in my 40 years.

[00:13:15] Speaker 02:
That is a generally accepted pronunciation and I thank you for that.

[00:13:21] Speaker 02:
There are several points I would like to address.

[00:13:24] Speaker 02:
First, Judge Toronto and Judge Bryson, you're exactly correct that the reasonable cause standard bears only on

[00:13:32] Speaker 02:
the notice period that was required in this case under the crime provision.

[00:13:37] Speaker 02:
And if you look at the statement of the issues presented on page one and two of the appellant's opening brief, it's clear that that is the only issue that was raised in the appellant's opening brief.

[00:13:48] Speaker 02:
That is, quote, whether reasonable cause for indefinite suspension exists in the first issue.

[00:13:53] Speaker 02:
And the second issue, whether the arbitrator's finding of reasonable cause is supported by substantial evidence.

[00:13:58] Speaker 04:
So your argument is that reasonable cause has nothing whatsoever to do with the validity of the ultimate sanction that was imposed, as opposed to the procedure that was employed in imposing that sanction.

[00:14:10] Speaker 02:
Correct.

[00:14:11] Speaker 02:
And if you look at page four of the arbitrator's decision, which is at appendix four, you'll see the standard that the arbitrator set out based on Dunnington and several other cases.

[00:14:22] Speaker 02:
And that is, quote, to prove that an indefinite suspension under the crime provision is valid.

[00:14:26] Speaker 02:
There are four things that must be looked at.

[00:14:28] Speaker 02:
The first is reasonable cause.

[00:14:30] Speaker 02:
The second is whether the suspension has an ascertainable end.

[00:14:34] Speaker 02:
The third is the nexus requirement that gets to the efficiency of the service.

[00:14:37] Speaker 02:
And then the fourth is whether the penalty use is reasonable.

[00:14:40] Speaker 02:
And the first and most important issue that I want to emphasize today is that- Where were you reading from?

[00:14:46] Speaker 04:
I'm sorry.

[00:14:47] Speaker 02:
I'm sorry.

[00:14:47] Speaker 02:
That was appendix four, page four of the arbitrator's decision.

[00:14:54] Speaker 02:
I mention that because I think that elucidates and confirms your suspicions and intuitions that yes.

[00:15:02] Speaker 03:
Whether there is reasonable cause to think that some criminal activity occurred, you may not need to use the term reasonable cause, but that was also, was it not, the basis for determining that the efficiency of the service would be affected by his

[00:15:23] Speaker 03:
remaining on the job, not being suspended.

[00:15:26] Speaker 03:
So it might just be using the same language to cover two different points.

[00:15:30] Speaker 03:
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.

[00:15:48] Speaker 02:
I think that there are two separate issues.

[00:15:51] Speaker 02:
If I understand Your Honor's point correctly, I would agree that I think the reasonable cause standard was perhaps somewhat conflated at certain points in the arbitrator's opinion, but I don't think that changes the fact that they are separate issues.

[00:16:05] Speaker 00:
And the most important issue that I... Can I ask you, how does this statement on appendix page four that you just referred to, how does it help your position that reasonable cause only relates to the procedure?

[00:16:19] Speaker 02:
Only relates to the procedure?

[00:16:21] Speaker 02:
Well, our position is that reasonable cause is relevant in this case only to the extent that the crime provision states that the notice period may be reduced from 30 days to as little as seven days if there's reasonable cause to believe that an appropriate crime has been committed.

[00:16:36] Speaker 04:
But that quote from the handbook looks like it's getting the two mixed up, or at least conflating them as part of the ultimate question of the propriety of the suspension substantive.

[00:16:51] Speaker 04:
as opposed to being directed only at the issue of procedural correctness.

[00:16:56] Speaker 02:
Well, I'm looking at the four separate issues as they're set out on page four.

[00:17:00] Speaker 02:
And the first one appears to me to be the reasonable cause requirement.

[00:17:03] Speaker 02:
And then the third one is whether there is a nexus between the criminal charge and the efficiency of the service.

[00:17:08] Speaker 04:
Right.

[00:17:09] Speaker 04:
And the nexus between the efficiency of the service and the penalty, the reasonableness of the penalty, go to the substantive issue.

[00:17:16] Speaker 04:
But the first, the reasonable cost to believe a crime has been committed, at least the language used there, is taken from the portion of the statute that is directed to the procedural problem, is it not?

[00:17:29] Speaker 02:
By procedural problem?

[00:17:31] Speaker 04:
Well, another 30-day requirement.

[00:17:33] Speaker 02:
Yes, that's precisely it.

[00:17:34] Speaker 04:
So it looks to me like the agency has, at minimum, mixed the two in together.

[00:17:43] Speaker 04:
They're not teasing out the procedural issue from the substantive point.

[00:17:48] Speaker 02:
They are both addressed as separate issues in the arbitration, and they were.

[00:17:53] Speaker 00:
Let me try.

[00:17:56] Speaker 00:
It says, the beginning of the sentence that you pointed us to says, to prove that an indefinite suspension under the crime provision is valid, an agency must establish that, and then you've got one through four.

[00:18:08] Speaker 00:
How am I supposed to know that one is just going to the 30-day provision?

[00:18:12] Speaker 00:
and not to the overall suspension?

[00:18:18] Speaker 02:
I would look at the language of the statute.

[00:18:20] Speaker 02:
7513B says that that's where the reasonable cause language comes from.

[00:18:26] Speaker 00:
So you don't think the agency has conflated the two here?

[00:18:30] Speaker 02:
I think that they're both being considered as they should be.

[00:18:33] Speaker 02:
I think that they're separate issues.

[00:18:37] Speaker 02:
And the only issue on appeal, as presented in Appellant's opening brief, is whether there was reasonable cause to believe that a qualifying crime had been committed.

[00:18:48] Speaker 02:
And for the first time in Appellant's reply brief, he now argues that he makes an entirely different argument that his suspension impermissibly exceeded the scope of the written notice.

[00:19:02] Speaker 02:
And this is something that was not only not presented in his opening brief, but more importantly,

[00:19:06] Speaker 02:
was not presented to the agency or to the arbitrator below.

[00:19:11] Speaker 02:
And this is a problem for several reasons.

[00:19:12] Speaker 02:
Because first, there's nothing in the record to suggest that the agency relied upon the 2015 allegation for any impermissible purpose.

[00:19:25] Speaker 02:
This court has held that a notice of proposed personnel action need not recite each and every particular fact that

[00:19:35] Speaker 02:
the agency relies upon in any way, shape, or form.

[00:19:40] Speaker 00:
That said... What is your site for that?

[00:19:43] Speaker 00:
What case are you relying on?

[00:19:50] Speaker 02:
I would start with O'Keefe, and several of the cases cited in O'Keefe from Petitioner, if you make that point.

[00:20:00] Speaker 03:
The point here is not about any new fact,

[00:20:04] Speaker 03:
wholly distinct incidents.

[00:20:07] Speaker 03:
Doesn't that seem like the kind of thing that notice is necessary to be given, not just an additional fact that supports the allegation we've already made about the same conduct?

[00:20:19] Speaker 02:
I would say in this case it's clear that notice was not required because there's nothing in the record to suggest that it in any way affected the punishment, the length of the punishment, or the type of the punishment.

[00:20:30] Speaker 02:
This is why it was important and incumbent upon the petitioner if petitioner believed.

[00:20:35] Speaker 03:
But that sounds like essentially a harmless error.

[00:20:38] Speaker 02:
Precisely.

[00:20:39] Speaker 02:
And that is something that this court has held can and should be addressed if this is an issue.

[00:20:45] Speaker 02:
And one of the ways that it can and should be addressed is by testimony from the deciding official as to the purpose for which he relied on evidence, the extent to which it affected his decision making process.

[00:20:58] Speaker 02:
I think if you look at

[00:20:59] Speaker 02:
All of the evidence in the record here, it's clear that it did not have any effect on the ultimate outcome.

[00:21:05] Speaker 02:
But Mr. Lockwood never raised this before the arbitrator or the agency.

[00:21:09] Speaker 02:
So the agency never had a chance to explain to the arbitrator, for instance, that, oh, I would have made the same decision regardless.

[00:21:17] Speaker 02:
And this court is consistently held on review of either board decisions or arbitrator decisions that

[00:21:27] Speaker 02:
this court will not consider arguments that were not presented to the arbitrator or to the board.

[00:21:32] Speaker 02:
And this is precisely the reason why.

[00:21:34] Speaker 02:
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 it in the first instance.

[00:21:47] Speaker 02:
And there's no evidence in the record to suggest that the alleged error was harmful, even assuming that it was an error.

[00:21:58] Speaker 03:
Can I just ask you, I think in your red brief, and maybe I should have asked Mr. Jones, do we know anything extra record about the status of the Louisiana criminal proceeding?

[00:22:09] Speaker 02:
The most that we know as of the date that we filed our brief is that based upon public records, his trial was still pending at that time.

[00:22:20] Speaker 02:
We attempted to attach a printout from the docket to our brief, and that was rejected.

[00:22:24] Speaker 03:
But that was, I mean, that date, if I remember right,

[00:22:27] Speaker 03:
this past fall, is that right?

[00:22:29] Speaker 02:
I believe it was in November when we filed our brief.

[00:22:32] Speaker 02:
So I have not gone back and checked in the last couple of months.

[00:22:35] Speaker 02:
But this is another important point, Your Honor.

[00:22:36] Speaker 02:
One of Mr. Lockwood's primary arguments in his opening brief and also before the arbitrator was that it was somehow error for the agency to suspend him without affirmatively producing evidence on its own to show that his trial had not yet occurred.

[00:22:52] Speaker 02:
But the notice that he received

[00:22:55] Speaker 02:
of his suspension clearly informed him, as stated in our brief, that it was his responsibility, as logically it would have to be, to come back to the agency and inform them when his trial was over and when the investigation was complete.

[00:23:09] Speaker 02:
And there's no evidence in the record to suggest that the case was settled or resolved or dismissed, and Mr. Lockwood has never argued otherwise.

[00:23:19] Speaker 02:
He simply claims without support that

[00:23:22] Speaker 02:
that for some reason it was the agency's burden to produce evidence showing that the trial had not yet occurred.

[00:23:28] Speaker 02:
And there's no evidence in the record or publicly available that we've been able to find to suggest that anything other than that the case is still pending.

[00:23:39] Speaker 02:
So for those reasons, I think it would be inappropriate for this court to address the argument in Mr. Lockwood's reply brief about the scope

[00:23:51] Speaker 02:
the scope of the notice that he received.

[00:23:53] Speaker 02:
If, for whatever reason, this court were to decide to address the issue, the proper remedy would not be to order that he be reinstated.

[00:24:01] Speaker 02:
The proper remedy would be to remand for the further factual development that never happened because Mr. Lockwood never raised this issue.

[00:24:09] Speaker 04:
Let me ask you one question about the record.

[00:24:12] Speaker 04:
We have, at appendix 100 through a few pages after that,

[00:24:21] Speaker 04:
What from the index looks or from the table of contents for the Joint Appendix looks like it is a collective bargaining agreement, a master labor agreement it's entitled.

[00:24:36] Speaker 04:
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

[00:24:50] Speaker 04:
the statute.

[00:24:52] Speaker 02:
It appears to be both.

[00:24:53] Speaker 02:
The arbitrator's decision references both the master agreement and the statute and portions of the agreement.

[00:25:00] Speaker 04:
To the extent that they may be inconsistent, what would be the outcome?

[00:25:03] Speaker 02:
I don't know, Your Honor.

[00:25:05] Speaker 04:
Isn't it usually the case when you have these collective bargaining agreements and arbitrated resolutions that it's an adjudication of the agreement as opposed to the statute, or is it?

[00:25:17] Speaker 02:
these federal cases.

[00:25:18] Speaker 02:
I think that's right.

[00:25:19] Speaker 02:
I'm not aware of any inconsistency between the master agreement and the statute.

[00:25:27] Speaker 02:
The issue as to reasonable cause, as it bears on, the notice required was consistently presented below.

[00:25:36] Speaker 02:
That is the issue that was argued before the arbitrator and is now on the field.

[00:25:41] Speaker 04:
You mean the statutory question.

[00:25:42] Speaker 02:
Yes.

[00:25:43] Speaker 04:
Yeah.

[00:25:43] Speaker 04:
Well, the reason I ask this is because if you look at page 101 under section 8, first sentence, it says, and this uses the language which looks pretty much like, I think it's not exactly the statutory language, pretty much.

[00:25:59] Speaker 04:
And it says, except where the crime provisions have been invoked.

[00:26:03] Speaker 04:
And presumably that's a reference to the crime provisions of the agreement, right?

[00:26:08] Speaker 04:
Not the crime provisions of the statute, or at least there's no indication of the

[00:26:13] Speaker 02:
I'm not aware of any indication of the contrary.

[00:26:15] Speaker 02:
My assumption in reading that is that it was referring to the crime provision in 7513B.

[00:26:19] Speaker 02:
But I don't know whether there might be another, whether that is set out elsewhere within the master agreement.

[00:26:25] Speaker 04:
Well, I looked at the rest of the agreement that we have, and I didn't see any crime provisions.

[00:26:30] Speaker 04:
And that doesn't mean there aren't some there.

[00:26:32] Speaker 04:
But do you know if there are any crime provisions somewhere in the rest of the agreement, parts of the agreement that we don't have in the appendix?

[00:26:39] Speaker 02:
I do not know, Your Honor.

[00:26:40] Speaker 04:
OK.

[00:26:40] Speaker 04:
So you don't know whether this is a reference

[00:26:43] Speaker 04:
crime provisions that may or may not track the language of the statute?

[00:26:48] Speaker 02:
I do not.

[00:26:52] Speaker 02:
All right.

[00:26:52] Speaker 02:
OK.

[00:26:52] Speaker 02:
If this court has no further questions, we would ask that the judgment of the arbitrator be affirmed.

[00:26:56] Speaker 03:
Thank you.

[00:27:11] Speaker 01:
Just wrong, but if I may, I can speak to the status of the case, if that's all right.

[00:27:15] Speaker 03:
It's just information only.

[00:27:17] Speaker 01:
OK.

[00:27:18] Speaker 01:
Yes, there was a bench trial on November 15, 2017.

[00:27:22] Speaker 01:
And when, after the state presented its case, Mr. Lockwood's defense counsel moved for a direct verdict of not guilty, which the judge granted on all counts.

[00:27:34] Speaker 01:
And I did want to address the government's comments regarding O'Keefe.

[00:27:40] Speaker 01:
because I think it's important to make the distinction.

[00:27:46] Speaker 01:
When this court vacated the MSPB's decision, vacating the board's reversal of an administrative judge's mitigation of a removal to a 60-day suspension, the court found that

[00:28:06] Speaker 01:
where the board exceeded the scope of its review of the agency's decision was that it accused Mr. O'Keefe of specific misdeeds that were not in the proposed notice.

[00:28:17] Speaker 01:
And so having done so, this court found that the board exceeded its authority.

[00:28:21] Speaker 01:
And so it was on the board's own initiative that it reached further than it was permitted to do to say that there was something more egregious than what the agency had asserted in the proposed notice.

[00:28:32] Speaker 01:
And that's similar to what happened in Mr. Lockwood's case.

[00:28:35] Speaker 01:
The arbitrator

[00:28:37] Speaker 01:
asserted that and concluded that the agency was permitted to go further than that proposed notice and on an allegation that was of a 2015 stalking allegation that was not included in the proposed notice and just like in O'Keefe