Stefani Gibson v. Securities and Exchange Commission

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STEFANI GIBSON,
Petitioner
v.
SECURITIES AND EXCHANGE COMMISSION,
Respondent
______________________
2024-1484
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-15-0335-I-5.
______________________
Decided: February 6, 2026
______________________
PETER BROIDA, Arlington, VA, argued for petitioner.
DANIEL BERTONI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
ALBERT S. IAROSSI, PATRICIA M. MCCARTHY, BRETT
SHUMATE, AMANDA TANTUM.
______________________
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GIBSON v. SEC 2
Before PROST, CUNNINGHAM, and STARK, Circuit Judges.
CUNNINGHAM, Circuit Judge.
Stefani Gibson petitions for review of a Merit Systems
Protection Board (“Board”) final order adopting the initial
decision that affirmed an agency action indefinitely sus-
pending her from her position of Personnel Security Spe-
cialist. Petitioner’s Br. 1; Gibson v. SEC, No. DC-0752-15-
0335-I-5 (M.S.P.B. Jan. 5, 2024) (“Final Order”) (App’x 1);
Gibson v. SEC, No. DC-0752-15-0335-I-5, 2017 WL
5710081 (M.S.P.B. Nov. 22, 2017) (App’x 2–19) (“Initial De-
cision”); see also Gibson v. SEC, No. DC-0752-15-0335-I-2
(M.S.P.B. June 1, 2016) (“Amendment Order”) (App’x 20–
24) (denying Ms. Gibson’s request to amend her appeal to
include Board review of the reassignment action).1 For the
reasons discussed below, we affirm.
I. BACKGROUND
In July 2014, the Securities and Exchange Commission
(“SEC”) hired Ms. Gibson to work as a Personnel Security
Specialist. Initial Decision at 6; App’x 52. “As a qualifica-
tion for this position, [Ms. Gibson] was required to main-
tain a Top Secret security clearance.” Amendment Order
at 1; Initial Decision at 3. After Ms. Gibson was hired, the
SEC obtained information regarding Ms. Gibson’s hiring
process, including that Ms. Gibson made certain misstate-
ments and omissions in her application forms about her
personal relationship with the selecting official for her
1 We refer to the appendix filed by Ms. Gibson, see
ECF No. 11, as “App’x” throughout this opinion. Citations
to the Board’s decisions in this opinion are to the versions
included in Ms. Gibson’s appendix. For example, Final Or-
der at 1 is found at App’x 1; Initial Decision at 1 is found at
App’x 2; and Amendment Order at 1 is found at App’x 20.
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GIBSON v. SEC 3
position, Mr. Cedric Drawhorn. Initial Decision at 5–6;
App’x 52.
On December 2, 2014, as a result of Ms. Gibson’s con-
duct and actions, the SEC suspended Ms. Gibson’s Top Se-
cret security clearance and consequently proposed to
indefinitely suspend her from duty and pay. Initial Deci-
sion at 2–3; App’x 50–55; App’x 38–40. The SEC sustained
the proposed penalty and indefinitely suspended Ms. Gib-
son’s employment on January 8, 2015. Initial Decision
at 4; App’x 41–46. On January 13, 2015, Ms. Gibson ap-
pealed her indefinite suspension to the Board, and that ap-
peal was subsequently dismissed without prejudice based
on the parties’ joint request. Amendment Order at 1.
In October 2015, the SEC “decided to return Ms. Gib-
son to active duty” and reinstated her security clearance.
App’x 49; App’x 37. The SEC indicated that it would “pro-
vide her with temporary duties pending permanent assign-
ment.” App’x 49. On October 31, 2015, Ms. Gibson refiled
her appeal and amended her Board appeal to seek to chal-
lenge her reassignment. Amendment Order at 2; App’x 35–
36. The SEC moved to dismiss Ms. Gibson’s amendment
on November 2, 2015. Amendment Order at 2. On Novem-
ber 12, 2015, the SEC formally notified Ms. Gibson that
she was being reassigned to the position of Management
Program Analyst at the same pay and grade. App’x 47–48.
On June 1, 2016, the administrative judge denied
Ms. Gibson’s request to amend, holding that “the Board
lacks jurisdiction” over any challenge to her reassignment.
Amendment Order at 5. In her request to amend, Ms. Gib-
son argued that “the suspension and subsequent reassign-
ment must be examined under a ‘unified penalty’ analysis,”
and in turn, the Board “has jurisdiction to consider her af-
firmative defense claim that the [SEC] reassigned her in
reprisal for her filing of this Board appeal.” Id. at 3. The
administrative judge rejected Ms. Gibson’s argument that
her suspension and reassignment constituted a “unified
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GIBSON v. SEC 4
penalty” pursuant to Brewer v. American Battle Monu-
ments Commission, 779 F.2d 663, 664–65 (Fed. Cir. 1985),
reasoning that “the suspension action was based on and re-
sulted from [Ms. Gibson]’s lack of qualification for her po-
sition whereas the subsequent reassignment action was
based on . . . findings that [Ms. Gibson] had provided inac-
curate and/or inconsistent statements during the investi-
gation related to the suspension of her security clearance.”
Amendment Order at 4–5.
On November 22, 2017, a different administrative
judge affirmed the SEC’s action indefinitely suspending
Ms. Gibson from her position as a Personnel Security Spe-
cialist. Initial Decision at 1–17. The administrative
judge’s initial decision became the final decision of the
Board on January 5, 2024, because there was no quorum.
Final Order at 1; see also 5 C.F.R. § 1200.3(b).
Ms. Gibson petitions for review of the Board’s Final Or-
der, including the Amendment Order denying her request
to amend her appeal to include a challenge to her reassign-
ment. Petitioner’s Br. 1. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).2
II. STANDARD OF REVIEW
Our review of Board decisions is limited by statute. See
5 U.S.C. § 7703; Archuleta v. Hopper, 786 F.3d 1340, 1346
(Fed. Cir. 2015). We may only set aside agency actions,
2 See Hendler v. United States, 952 F.2d 1364, 1368
(Fed. Cir. 1991) (“As a general proposition, when a trial
court disposes finally of a case, any interlocutory rulings
‘merge’ with the final judgment. Thus both the order fi-
nally disposing of the case and the interlocutory orders are
reviewable on appeal.”); see generally Curtin v. Off. of Pers.
Mgmt., 846 F.2d 1373, 1378–79 (Fed. Cir. 1988) (reviewing
interlocutory rulings by the Board including rulings on mo-
tions to compel).
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GIBSON v. SEC 5
findings, or conclusions found to be: “(1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c); Ar-
chuleta, 786 F.3d at 1346.
III. DISCUSSION
Ms. Gibson argues that the Board erred as a matter of
law by refusing to exercise jurisdiction over Ms. Gibson’s
reassignment. Petitioner’s Br. 12. Specifically, Ms. Gibson
argues that because the reasons for Ms. Gibson’s reassign-
ment were “closely linked” to the reasons underlying her
indefinite suspension, her indefinite suspension and reas-
signment constitute a “unified penalty” under Brewer. Id.
We disagree.
Pursuant to 5 U.S.C. § 7512, a suspension for more
than 14 days is appealable to the Board. 5 U.S.C.
§ 7512(2). However, “the Board normally lacks jurisdiction
to review the reassignment of an employee who does not
suffer a loss of grade or pay.” Walker v. Dep’t of the Navy,
106 F.3d 1582, 1584 (Fed. Cir. 1997); see 5 U.S.C. § 7512.
Therefore, the only way for the Board to exercise jurisdic-
tion over Ms. Gibson’s reassignment is if her reassignment
and indefinite suspension constituted “a unified penalty
arising out of the set of circumstances of which [Ms. Gib-
son] was found culpable.” Brewer, 779 F.2d at 664; Ar-
chuleta, 786 F.3d at 1350 (“[T]his court has recognized that
the Board has jurisdiction to review a ‘unitary penalty’
arising out of the same set of circumstances.”).
The Board did not err in declining to exercise jurisdic-
tion over Ms. Gibson’s reassignment. The Board concluded
that it lacked jurisdiction over any challenge to Ms. Gib-
son’s reassignment because whereas the suspension arose
from Ms. Gibson’s inability to perform her role without a
security clearance, the reassignment was based on her “in-
accurate and/or inconsistent statements during the
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GIBSON v. SEC 6
investigation related to the suspension of her security
clearance.” Amendment Order at 4–5. This latter factual
finding is supported by substantial evidence. See, e.g.,
App’x 39 (“A requirement of [Ms. Gibson’s] position is that
[she] maintain[s] the ability to access classified infor-
mation and that [she] maintain[s] a security clearance.”);
App’x 42–43 (same); App’x 47 (noting that Ms. Gibson
“(1) failed to mention foreign trips on her SF-86 and was
not truthful in her answers; (2) denied, in error, editing
and reviewing SEC work product prior to her SEC employ-
ment; (3) provided two different accounts concerning her
receipt of payments from Mr. Drawhorn to store his belong-
ings in her home; and (4) provided statements that con-
flicted with those provided by her supervisor Kelly
Gibbs.”).
Thus, this case is distinguishable from Brewer. In
Brewer, the agency reassigned and demoted in grade the
appellant after he lost government property and violated
two agency regulations. Brewer, 779 F.2d at 663–64. The
Board “held that it was without jurisdiction to review the
transfer, on the basis of the agency’s assertions that the
transfer was not part of the penalty but rather a manage-
ment decision independent of the asserted wrongdoing.”
Id. at 664. We vacated and remanded the Board’s decision
because “[t]he record consistently refer[red] to the demo-
tion and reassignment as a unified penalty arising out of
the set of circumstances of which [the appellant] was found
culpable.” Id. There is no such indication in the record
here. By contrast, the indefinite suspension and reassign-
ment here do not constitute a unified penalty because the
indefinite suspension and reassignment do not “aris[e] out
of the set of circumstances of which [Ms. Gibson] was found
culpable.” Id. Accordingly, the Board did not commit re-
versible error in determining that there was no unified
penalty.
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GIBSON v. SEC 7
IV. CONCLUSION
We have considered Ms. Gibson’s remaining argu-
ments and find them unpersuasive. For the reasons above,
we affirm.
AFFIRMED
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