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        NOTE: This disposition is nonprecedential.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.”).
