Pulling Security Clearance Leads to Disciplinary Indefinite Suspension

DOJ indefinitely suspended an employee after his security clearance was pulled. See how he made out on appeal.

In Lucena v Department of Justice (CAFC No. 2019-1974 (nonprecedential) 3/3/20), the court briefly outlined the facts. Mr. Lucena’s position as a Telecommunications Specialist with the Drug Enforcement Agency required access to classified information. The agency suspended his clearance and followed up with an indefinite disciplinary suspension stemming from his lack of a clearance. He was informed his suspension would last until some final disposition was made on his security clearance. The agency’s notice gave Lucena the right to review the material that served as the basis for pulling his clearance. The investigative file leading to the decision to suspend his clearance cited three matters of concern. First, a letter from one of his family members alleging Lucena had been threatening and abusive. Second, complaints from coworkers about “highly agitated behavior” by Mr. Lucena. Third, an incident involving local police who stopped Lucena for driving while intoxicated, refusing a breathalyzer, and posing as a law enforcement officer. (Opinion pp. 3-4)

Some seven months later the agency reinstated Lucena’s access to classified material and ended his indefinite suspension. He appealed to the Merit Systems Protection Board (the Board) seeking retroactive reinstatement, arguing that the agency had failed to afford him due process in taking the disciplinary suspension. The Board found that the agency had provided Lucena with enough information upon which it based its action so as to afford him a chance to provide a “meaningful response.” (p. 7) 

The appeals court agreed and has now sustained the Board’s decision. The court points out that, contrary to Lucena’s argument, the notice issued to Lucena had sufficient information to permit him to make a meaningful response. (p. 9)

In short, Lucena’s indefinite suspension stands.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.