NOTE: This disposition is nonprecedential.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 Justice, Washington, DC, for respondent. Also represented by 

JOSEPH H. HUNT, ALLISON KIDD-MILLER, ROBERT EDWARD 

KIRSCHMAN, JR. 

 ______________________

Before WALLACH, MAYER, and STOLL, Circuit Judges.

Case: 19-1974 Document: 41 Page: 1 Filed: 03/03/2020
2 LUCENA v. DOJ

PER CURIAM.

Petitioner David Lucena seeks review of a final decision of the Merit Systems Protection Board (“MSPB”) affirming his indefinite suspension from duty and pay1 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 Enforcement Agency (“DEA”). S.A. 97; see S.A. 97–100 (Joint Submission 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 investigation, 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 Appendix 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 become the [MSPB]’s final decision [thirty-five] days after issuance” unless, inter alia, “(a) . . . any party files a petition 

for review”). Therefore, we refer to the Initial Decision as 

the MSPB’s Final Decision.

Case: 19-1974 Document: 41 Page: 2 Filed: 03/03/2020
LUCENA v. DOJ 3

Sensitive,” meaning it requires eligibility for access to National 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. Lucena that he was suspending Mr. Lucena’s security clearance and access to NSI and DEA Information Technology 

systems. P.A. 26 (External Memorandum). The DCI explained that Mr. Lucena’s suspension was to “remain in effect pending a final decision regarding revocation of [his] 

access to NSI,” and the “conclusion of any related administrative 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 security clearance had been suspended. P.A. 28; see P.A. 28–29 

(Internal Memorandum). The Internal Memorandum explained 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 candor, 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 “propose[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 Notice explained that Mr. Lucena’s security clearance had 

been suspended based on the three separate matters identified in his OPR investigative file. P.A. 31. It then detailed those matters: (1) a February 2015 email from Mr. 

Case: 19-1974 Document: 41 Page: 3 Filed: 03/03/2020
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 coworker made through the unit chief (“UC”) in the DEA’s

Office of Investigative Technology, alleging that Mr. Lucena had “engaged in unwarranted, highly agitated behavior” 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 “reported 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 material 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 documentation necessary . . . to respond to the [Notice],” P.A. 50–51, 

and challenged the “specific bases underlying” the suspension of his security clearance, P.A. 51. He also presented, 

through counsel, an oral response before the Deciding Official 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 Deciding Official informed Mr. Lucena that he had found Mr. Lucena’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 concluded 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 

Case: 19-1974 Document: 41 Page: 4 Filed: 03/03/2020
LUCENA v. DOJ 5

pay . . . upon [his] receipt of [the] letter, pending a final decision regarding revocation of [his] eligibility for access to 

NSI” and finalization of “any resulting administrative action.” S.A. 68 (emphases omitted). 

Mr. Lucena was suspended from his position in May 

2016. S.A. 100. Approximately seven months later, in December 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 indefinite 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 error,” P.A. 8.

DISCUSSION

I. Standard of Review and Legal Standard

We will uphold an MSPB decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law”; “obtained without procedures required 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 security-clearance determination.” Dep’t of Navy v. Egan, 484 

U.S. 518, 530 (1988). The MSPB cannot “review the substance of the security[-]clearance determination[.]” Kaplan 

v. Conyers, 733 F.3d 1148, 1151 (Fed. Cir. 2013) (en banc)

Case: 19-1974 Document: 41 Page: 5 Filed: 03/03/2020
6 LUCENA v. DOJ

(citing Egan, 484 U.S. at 530–31). Rather, it may only review: “(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. (quoting 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 notice 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 omitted). It need not, however, “include explicitly every element 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 security 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 suspended.” 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 

Case: 19-1974 Document: 41 Page: 6 Filed: 03/03/2020
LUCENA v. DOJ 7

allow a meaningful response.” P.A. 12 (internal quotation 

marks, alterations, and footnote omitted). Mr. Lucena argues that the DOJ failed to afford him the required “protections” 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 suspension 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. Lucena’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 resulting administrative action is effected.”). The Notice explained, 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 information obtained . . . during a preliminary review” of his 

OPR investigative file), 31–32 (providing the three “matters . . . 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 established that Mr. Lucena held “a position that required a security clearance[,]” P.A. 6, that Mr. Lucena’s “security 

clearance was suspended[,]” id., and that there are “no positions [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. 

Case: 19-1974 Document: 41 Page: 7 Filed: 03/03/2020
8 LUCENA v. DOJ

“entitles [the] employee to notice of the reasons for the suspension 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 unpersuasive. First, Mr. Lucena argues that the Notice “did not 

afford [him] . . . sufficient reasons . . . for his clearance 

5 Mr. Lucena also argues that the DOJ “violat[ed] . . . 5 U.S.C. § 7513(e)” by failing to provide Mr. Lucena 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 information through the Notice, compare P.A. 28–29 (Internal 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.”).

Case: 19-1974 Document: 41 Page: 8 Filed: 03/03/2020
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. Lucena’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 provided “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 proposed suspension. Id. at 1353 (internal quotation marks 

omitted). 

Second, Mr. Lucena contends that the Notice was insufficient because it “omitted material facts that [Mr. Lucena’s] counsel relied on in drafting a reply.” Pet’r’s Br. 26.

This argument is without merit. The Notice was not required 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] suspension was beyond the bounds of reasonableness and contrary 

to the [DEA’s] procedures and policies.” Pet’r’s Br. 20 (capitalization altered). However, Mr. Lucena relies on a mischaracterization 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 recall any other employee being suspended for the same 

length of time as [Mr. Lucena]” (citing P.A. 61–65)), with 

Case: 19-1974 Document: 41 Page: 9 Filed: 03/03/2020
10 LUCENA v. DOJ

CONCLUSION

We have considered Mr. Lucena’s remaining arguments and find them unpersuasive.7 Accordingly, the Final 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 question. . . . [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 suspension is in effect will be driven by the underlying matters 

which require investigation[.]”). Moreover, Mr. Lucena 

fails to identify any procedure or policy purportedly violated. 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 determination that it lacked jurisdiction to consider this argument, 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 program 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 correct.”), 66 (Q: “What were you alluding to or referencing 

when you said there were procedures or policies . . . ?” 

Case: 19-1974 Document: 41 Page: 10 Filed: 03/03/2020
LUCENA v. DOJ 11

AFFIRMED 

COSTS

Each party shall bear its own costs. 

A: “[I was] [r]eferring to [an] executive order and [subsequent] documents . . . , which govern the adjudication decision-making process.”). 

Case: 19-1974 Document: 41 Page: 11 Filed: 03/03/2020