Case: 19-1974 Document: 41 Page: 1 Filed: 03/03/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID LUCENA,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2019-1974
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-19-0097-I-1.
______________________
Decided: March 3, 2020
______________________
KEVIN CURTIS CRAYON, II, Crayon Law Firm, LLC,
Kennesaw, GA, for petitioner.
GEOFFREY MARTIN LONG, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
JOSEPH H. HUNT, ALLISON KIDD-MILLER, ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Before WALLACH, MAYER, and STOLL, Circuit Judges.
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2 LUCENA v. DOJ
PER CURIAM.
Petitioner David Lucena seeks review of a final deci-
sion of the Merit Systems Protection Board (“MSPB”) af-
firming his indefinite suspension from duty and pay 1 by the
U.S. Department of Justice (“DOJ”) for approximately
seven months, while resolution of his suspended security
clearance was pending. See Lucena v. Dep’t of Justice, No.
DC-0752-19-0097-I-1,
2019 WL 1242602 (M.S.P.B.
Mar. 13, 2019) (P.A. 1–15) (Final Decision) at P.A. 1. 2, 3 We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012).
We affirm.
BACKGROUND
Mr. Lucena is a Telecommunications Specialist in the
Operational Support Division of the DOJ’s Drug Enforce-
ment Agency (“DEA”). S.A. 97; see S.A. 97–100 (Joint Sub-
mission of Stipulated Facts). Mr. Lucena’s position, like all
positions within the DEA, is classified as “Critical
1 “Indefinite suspension” is “the placing of an employee
in a temporary status without duties and pay pending in-
vestigation, inquiry, or further agency action.” 5 C.F.R.
§ 752.402 (2016).
2 “P.A.” refers to the Petitioner’s Appendix attached to
Mr. Lucena’s brief. “S.A.” refers to the Supplemental Ap-
pendix attached to the DOJ’s brief.
3 An administrative judge issued an initial decision on
March 13, 2019, see P.A. 1, which became final on April 17,
2019, as neither Mr. Lucena nor the DOJ filed a petition
for review, see P.A. 15; see also 5 C.F.R. § 1201.113 (2019)
(providing that “[t]he initial decision of the judge will be-
come the [MSPB]’s final decision [thirty-five] days after is-
suance” unless, inter alia, “(a) . . . any party files a petition
for review”). Therefore, we refer to the Initial Decision as
the MSPB’s Final Decision.
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LUCENA v. DOJ 3
Sensitive,” meaning it requires eligibility for access to Na-
tional Security Information (“NSI”). S.A. 97.
On March 28, 2016, the Deputy Chief Inspector (“DCI”)
in the DEA’s Office of Security Programs, notified Mr. Lu-
cena that he was suspending Mr. Lucena’s security clear-
ance and access to NSI and DEA Information Technology
systems. P.A. 26 (External Memorandum). The DCI ex-
plained that Mr. Lucena’s suspension was to “remain in ef-
fect pending a final decision regarding revocation of [his]
access to NSI,” and the “conclusion of any related adminis-
trative proceedings.” P.A. 26; see S.A. 97–98. The External
Memorandum did not explain why Mr. Lucena’s security
clearance had been suspended. P.A. 26.
The same day, in an internal memorandum, the DCI
notified the Deputy Assistant Administrator (“DAA”) of the
DEA’s Human Resources Division that Mr. Lucena’s secu-
rity clearance had been suspended. P.A. 28; see P.A. 28–29
(Internal Memorandum). The Internal Memorandum ex-
plained that a preliminary review of Mr. Lucena’s Office of
Professional Responsibility (“OPR”) investigative file had
“identified three separate matters that demonstrate[d]
questionable judgment and trustworthiness, lack of can-
dor, unwillingness to comply with rules or regulations, and
driving while under the influence (of alcohol).” P.A. 28; see
P.A. 28–29 (detailing the three matters). Mr. Lucena was
not sent a copy of the Internal Memorandum. P.A. 55.
On April 13, 2016, the DAA notified Mr. Lucena that,
in light of his suspended security clearance, the DAA “pro-
pose[d] to indefinitely suspend [Mr. Lucena] without
pay . . . until a final decision regarding the revocation of
[his] access to NSI and any resulting administrative action
[was] effected.” P.A. 31; see P.A. 31–33 (Notice). The No-
tice explained that Mr. Lucena’s security clearance had
been suspended based on the three separate matters iden-
tified in his OPR investigative file. P.A. 31. It then de-
tailed those matters: (1) a February 2015 email from Mr.
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4 LUCENA v. DOJ
Lucena’s daughter alleging that Mr. Lucena had “engaged
in threatening behavior” and “verbal and physical abuse”;
(2) a September 14, 2014, complaint from Mr. Lucena’s co-
worker made through the unit chief (“UC”) in the DEA’s
Office of Investigative Technology, alleging that Mr. Lu-
cena had “engaged in unwarranted, highly agitated behav-
ior” during an employee training, that Mr. Lucena had
“denied the claim when confronted by the UC,” and that
“[s]ince then, several of [Mr. Lucena’s] co-workers” had “re-
ported that [he] continued to engage in similar behavior”
thereafter; and (3) three separate October 9, 2015, charges
filed by local police against Mr. Lucena for “driving while
intoxicated, impersonating a law enforcement officer, and
refusing a breathalyzer examination.” P.A. 31–32. The
Notice informed Mr. Lucena of his “right to review the ma-
terial upon which [the proposed indefinite suspension]
[was] based,” his right to answer the Notice either orally,
in writing, or both, and his “right to have a representative
or attorney assist [him][.]” P.A. 32.
In May 2016, Mr. Lucena, through counsel, provided a
written response to the Notice. P.A. 47–53 (Written Reply);
see S.A. 100. Mr. Lucena argued that the DOJ had “failed
to provide Mr. Lucena with information and documenta-
tion necessary . . . to respond to the [Notice],” P.A. 50–51,
and challenged the “specific bases underlying” the suspen-
sion of his security clearance, P.A. 51. He also presented,
through counsel, an oral response before the Deciding Offi-
cial of the DEA’s Human Resources Division. S.A. 70–71
(notes taken during Mr. Lucena’s oral response); see S.A.
100. After considering “the evidence of record,” the Decid-
ing Official informed Mr. Lucena that he had found Mr. Lu-
cena’s indefinite suspension “appropriate in order to
promote the efficiency of the service[.]” S.A. 68; see
S.A. 68–69 (Suspension Letter). The Deciding Official con-
cluded that Mr. Lucena had been “afforded due process.”
S.A. 68; see S.A. 100. The Suspension Letter indicated that
Mr. Lucena was “indefinitely suspend[ed] . . . without
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LUCENA v. DOJ 5
pay . . . upon [his] receipt of [the] letter, pending a final de-
cision regarding revocation of [his] eligibility for access to
NSI” and finalization of “any resulting administrative ac-
tion.” S.A. 68 (emphases omitted).
Mr. Lucena was suspended from his position in May
2016. S.A. 100. Approximately seven months later, in De-
cember 2016, the DCI “reinstated [Mr. Lucena’s] access to
NSI,” reinstated his “security clearance,” and directed
Mr. Lucena to return to duty on December 27, 2016.
S.A. 20. In November 2018, Mr. Lucena appealed his in-
definite suspension to the MSPB. P.A. 1; see S.A. 91–92
(Order on Approved Issues). The MSPB affirmed the DOJ’s
action, concluding, inter alia, that Mr. Lucena had “failed
to show that the [DOJ] [had] denied him the due process to
which he was entitled,” P.A. 11, and “ha[d] not shown that
the [DOJ’s] action was the result of harmful procedural er-
ror,” P.A. 8.
DISCUSSION
I. Standard of Review and Legal Standard
We will uphold an MSPB decision unless it is “arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law”; “obtained without procedures re-
quired by law, rule, or regulation having been followed”; or,
“unsupported by substantial evidence.” 5 U.S.C. § 7703(c)
(2012); see Grover v. Office of Pers. Mgmt.,
828 F.3d 1378,
1382 (Fed. Cir. 2016) (similar) (citing 5 U.S.C. § 7703(c)).
“The petitioner bears the burden of establishing error in
the MSPB’s decision.” Jenkins v. Merit Sys. Prot. Bd.,
911
F.3d 1370, 1373 (Fed. Cir. 2019) (internal quotation marks,
alteration, and citation omitted).
The MSPB has limited “authority . . . to review a secu-
rity-clearance determination.” Dep’t of Navy v. Egan,
484
U.S. 518, 530 (1988). The MSPB cannot “review the sub-
stance of the security[-]clearance determination[.]” Kaplan
v. Conyers,
733 F.3d 1148, 1151 (Fed. Cir. 2013) (en banc)
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6 LUCENA v. DOJ
(citing
Egan, 484 U.S. at 530–31). Rather, it may only re-
view: “(1) whether an [administrative agency] determined
the employee’s position required a security clearance;
(2) whether the clearance was denied or revoked;
(3) whether the employee was provided with the procedural
protections specified in 5 U.S.C. § 7513; and (4) whether
transfer to a nonsensitive position was feasible.”
Id. (quot-
ing Egan, 484 U.S. at 530). Under 5 U.S.C. § 7513, an
agency must provide an employee with “advance written
notice” of an adverse action, “stating the specific reasons
for the proposed action[.]” 5 U.S.C. § 7513(b)(1). Such no-
tice must “apprise[] the employee of the nature of the
charges in sufficient detail to allow the employee to make
an informed reply.” King v. Alston,
75 F.3d 657, 661 (Fed.
Cir. 1996) (internal quotation marks and citations omit-
ted). It need not, however, “include explicitly every ele-
ment of every charge underlying the proposed action.”
Brook v. Corrado,
999 F.2d 523, 526–27 (Fed. Cir. 1993).
This means that, when an employee is suspended from
duty and pay “pending a decision on the employee’s secu-
rity clearance,” § 7513(b) “entitles [the] employee to notice
of the reasons for the suspension of his [or her] access to
classified information[.]”
King, 75 F.3d at 661. “Merely
providing the employee with information that his access to
classified information is being suspended, without more,
does not provide the employee with sufficient information
to make an informed reply to the agency before being sus-
pended.” Cheney v. Dep’t of Justice,
479 F.3d 1343, 1352
(Fed. Cir. 2007) (internal quotation marks and citation
omitted).
II. The MSPB Did Not Err in Concluding that Mr. Lucena
Was Given Sufficient Notice Under § 7513
The MSPB concluded that through the Notice, the DOJ
had informed Mr. Lucena of the “very specific allegations”
against him, in keeping with the agency’s obligation “to
provide information about when [the] alleged misconduct
took place and what it involved with detail sufficient to
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LUCENA v. DOJ 7
allow a meaningful response.” P.A. 12 (internal quotation
marks, alterations, and footnote omitted). Mr. Lucena ar-
gues that the DOJ failed to afford him the required “pro-
tections” under 5 U.S.C. § 7513(b), because it “failed to
provide sufficient reasons . . . for his [security] clearance
suspension” and, therefore, his indefinite suspension.
Pet’r’s Br. 21 (emphasis omitted). We disagree with
Mr. Lucena. 4
The MSPB did not err in concluding that Mr. Lucena
was given sufficient notice of his proposed indefinite sus-
pension in accordance with 5 U.S.C. § 7513(b). Mr. Lucena
received the Notice of his proposed indefinite suspension in
April 2016. P.A. 31. The Notice expressly provided that
Mr. Lucena’s proposed indefinite suspension was a result
of the suspension of his security clearance. P.A. 31 (“Based
on the March 28, 2016, decision . . . to suspend [Mr. Lu-
cena’s] access to [NSI], [the DAA] propose[d] to indefinitely
suspend [Mr. Lucena] without pay . . . until a final decision
regarding the revocation of [his] access to NSI and any re-
sulting administrative action is effected.”). The Notice ex-
plained, with specificity, why Mr. Lucena’s security
clearance had been suspended. P.A. 31 (explaining that
Mr. Lucena’s “access to NSI was suspended based on infor-
mation obtained . . . during a preliminary review” of his
OPR investigative file), 31–32 (providing the three “mat-
ters . . . identified” in his OPR investigative file). This is
sufficient. See
King, 75 F.3d at 662 (explaining § 7513(b)
4 The MSPB also concluded that the DOJ had estab-
lished that Mr. Lucena held “a position that required a se-
curity clearance[,]” P.A. 6, that Mr. Lucena’s “security
clearance was suspended[,]”
id., and that there are “no po-
sitions [within the DEA] that do not require a security
clearance[,]” P.A. 14. Mr. Lucena does not contest these
findings. See generally Pet’r’s Br.
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8 LUCENA v. DOJ
“entitles [the] employee to notice of the reasons for the sus-
pension of his [or her] access to classified information when
that is the reason for placing the employee on [indefinite
suspension]”). Mr. Lucena was provided with such “detail”
as to “make an informed reply.”
Brook, 999 F.2d at 526; see
P.A. 51–53 (Written Response) (showing Mr. Lucena’s clear
understanding of the specific allegations against him). 5
Mr. Lucena’s primary counterarguments are unper-
suasive. First, Mr. Lucena argues that the Notice “did not
afford [him] . . . sufficient reasons . . . for his clearance
5 Mr. Lucena also argues that the DOJ “vio-
lat[ed] . . . 5 U.S.C. § 7513(e)” by failing to provide Mr. Lu-
cena with “copies of [the Internal] [M]emo[randum][.]”
Pet’r’s Br. 30. This argument is without merit. Section
7513(e) does not require that the DOJ provide Mr. Lucena
with copies of the Internal Memorandum; it requires that
the DOJ “maintain[]” “[c]opies of” various case documents,
including “any supporting material,” and “furnish[]” these
documents to the “employee affected upon the employee’s
request.” 5 U.S.C. § 7513(e); see 5 C.F.R. § 752.404 (noting
an employee’s “right to review the material which is relied
on to support the reasons for action given in the notice”).
Further, Mr. Lucena fails to establish harmful error, as he
was given access to the Internal Memorandum, P.A. 49
(providing that, Mr. Lucena had “reviewed the evidence file
supporting” the Notice, which contained: the External
Memorandum, the Internal Memorandum, and the Notice),
and was provided with a copy of substantively the same in-
formation through the Notice, compare P.A. 28–29 (Inter-
nal Memorandum), with P.A. 31–33 (Notice). See Ward v.
U.S. Postal Serv.,
634 F.3d 1274, 1281 (Fed. Cir. 2011) (“We
have repeatedly held employees to this burden to show
harmful error in an agency’s procedure in order to establish
reversible procedural error.”).
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LUCENA v. DOJ 9
suspension[,]” likening his situation to that in Cheney.
Pet’r’s Br. 21 (citing
Cheney, 479 F.3d at 1352–53). Mr. Lu-
cena’s reliance on Cheney is inapt. In Cheney, we concluded
that the DEA had not met the procedural requirements of
§ 7513(b) because it had provided the impacted employee
with only “broad and unspecific allegations” without any
“indication of when his alleged conduct took place or what
it involved[,]” leaving him unable to make “a meaningful
response.” 479 F.3d at 1352. There, the DEA had not pro-
vided “any specific information regarding the time frame”
of the alleged conduct or the specific nature of the conduct.
Id. That is not the case here. The Notice provided specific
times and specific allegations of misconduct. P.A. 31–33.
Mr. Lucena was not left to “guess at the reason” for his pro-
posed suspension.
Id. at 1353 (internal quotation marks
omitted).
Second, Mr. Lucena contends that the Notice was in-
sufficient because it “omitted material facts that [Mr. Lu-
cena’s] counsel relied on in drafting a reply.” Pet’r’s Br. 26.
This argument is without merit. The Notice was not re-
quired to “include explicitly every element of every charge
underlying the proposed action.”
Brook, 999 F.2d at 526–
27. Accordingly, the MSPB did not err in concluding that
the DOJ gave Mr. Lucena sufficient notice under 5 U.S.C.
§ 7513(b) of his proposed indefinite suspension. 6
6 Mr. Lucena also argues that “the length of [his] suspen-
sion was beyond the bounds of reasonableness and contrary
to the [DEA’s] procedures and policies.” Pet’r’s Br. 20 (cap-
italization altered). However, Mr. Lucena relies on a mis-
characterization of the record to support his argument that
the length of his suspension was unreasonable. Compare
id. (asserting that the DCI testified that “he could not re-
call any other employee being suspended for the same
length of time as [Mr. Lucena]” (citing P.A. 61–65)), with
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10 LUCENA v. DOJ
CONCLUSION
We have considered Mr. Lucena’s remaining argu-
ments and find them unpersuasive. 7 Accordingly, the Fi-
nal Decision of the Merit Systems Protection Board is
P.A. 61–62 (Q: “Now you testified earlier there is no rule
regarding length of time. . . . What was the average . . . ?”
A: “I’m not prepared to provide an answer to that ques-
tion. . . . [I]t’s critical to point out the fact that each one of
these matters is separate and unique unto itself. And as a
result, the length of time for which the indefinite suspen-
sion is in effect will be driven by the underlying matters
which require investigation[.]”). Moreover, Mr. Lucena
fails to identify any procedure or policy purportedly vio-
lated. See Pet’r’s Br. 20–21.
7 Mr. Lucena argues that the DOJ “failed to maintain an
effective security program,” thereby “causing prejudice to
[Mr. Lucena].” Pet’r’s Br. 31–32 (capitalization altered).
Mr. Lucena, however, does not challenge the MSPB’s de-
termination that it lacked jurisdiction to consider this ar-
gument, nor does he identify any basis for us to review this
argument. Id.; see P.A. 9 (“[T]his argument seeks a ruling
on matters far beyond the [MSPB’s] authority.” (footnote
omitted)). The MSPB “does not have authority to review
the substance of [a] security[-]clearance determination”;
neither do we.
Kaplan, 733 F.3d at 1151; see
Egan, 484
U.S. at 527–30. Further, Mr. Lucena’s argument relies on
a mischaracterization of the record. Compare Pet’r’s Br. 32
(stating that the DCI “admitted that he had no written pro-
gram in place when he suspended [Mr. Lucena’s] access to
[NSI]” (citing P.A. 65–66)), with P.A. 65 (Q: “So there was
no written policy that governed suspension of access during
the time [Mr. Lucena] was suspended?” A: “That is not cor-
rect.”), 66 (Q: “What were you alluding to or referencing
when you said there were procedures or policies . . . ?”
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LUCENA v. DOJ 11
AFFIRMED
COSTS
Each party shall bear its own costs.
A: “[I was] [r]eferring to [an] executive order and [subse-
quent] documents . . . , which govern the adjudication deci-
sion-making process.”).
