# United States **Court of Appeals**  **for the Federal Circuit**

______________________
LOUISE KLEES

- WALLACE, Petitioner

v.

FEDERAL COMMUNICATIONS COMMISSION, Respondent

______________________

2015

- 3067

______________________
Petition for review of an arbitrator’s decision in No. FMCS 13

- 58977

- A by Mary P. Bass.

______________________
Decided: March 10 , 2016

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A LLISON G ILES , National Treasury Employees Union, Washingt on, DC, argued for petitioner. Also represented by G REGOR Y O’D UDEN , L ARRY J OSEPH A DKINS

.

A LLISON K IDD -M ILLER , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washingt on, DC, argued for respondent. Also represented by A LEXIS J. E CHOLS , B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN , J R ., F RANKLIN E. W HITE , J R

.

______________________ Before D YK , B RYSON , and W ALLACH , Circuit Judges.

W ALLACH , Circuit Judge.KLEES

- WALLACE v. FCC 2

Petitioner Louise Klees

- Wallace appeals the a rbitr ation Opinion and Interim Award of Mary Bass (“Arbitr ator”)

, who determined Ms. Klees

- Wallace was deprived of certain procedural rights during her removal from e mployment and remanded the matter for a new determin ation free of procedural error. See FCC v. Nat’l Treasury Emps. Union
, No. FMCS 13

- 58977

- A (Nov. 10, 2014) (Bass, Arb.) (J.A. 6

– 17). For the reasons set forth below, we dismiss th e appeal of that interim decision for lack of jurisdiction.

B ACKGROUND
Ms. Klees

- Wallace was employed as an Attorney

Advisor in the International Bureau of the Federal Co mmunications Commission (“ FCC ”) . In May 2011, the FCC proposed remov ing Ms. Klees

- Wallace from employment due to her absence without leave (“AWOL”) and failure to follow instructions. In June 2012, the parties entered into a last chance agreement (“LCA”), which allowed Ms. Klees- Wal lace to return to work with the FCC pursuant to certain conditions. See J.A. 18

– 22 (LCA). Among the conditions of t he LCA were procedures by which Ms. Klees

- Wallace was required to request leave. In the relevant part s , paragraph 2 of the LCA instructed Ms. Klees

- Wallace: (b) to request leave at least one day in advance of her planned usage of such leave, except in eme rgencies as determined by her supervisor, in a ccordance with paragraph nos. 2(e) and 2(f) herein; (c) to provide her supervisor upon reque st with medical certification substantiating, in accordance with 5 C.F.R. § 630.401, the need for sick leave or any leave in lieu of sick leave, for any future a bsences related to her medical condition. The me dical documentation must be received by her

su pervisor within five days after her return to d u-KLEES

- WALLACE v. FCC 3

ty. Failure to provide medical documentation may result in the absence being designated as AWOL; (d) that she must meet all eligibility and doc umentation requirements found in Articles 27, 28, 29, and 30 of the Basic Negotiated Agreement [(“ BNA ”)] between the FCC and National Trea sury Employees Union [ (“ NTEU ”) ] (or the appr opriate articles in a successor BNA), in order to use any types of leave specified in th ose articles that have not been individually addressed in this Agreement. Failure to meet t he stated eligibility and/or documentation requirements outlined in those BNA articles may result in the absence b eing designated as AWOL ;
J.A. 18. The LCA further di ctated that if Ms. Klees

Wallace was “AWOL for one hour or more on any occ asion” during the eighteen

- month term of the LCA, she would “be considered automatically in violation of the terms of [the LCA].” J.A. 19 ¶ h . It also provided that if Ms. Klees

- Wa llace’s “removal is effectuated for her breach of [the LCA], she will receive [ notice ] but will not receive a new proposal to remove, nor will she be given an oppo rtunity to respond to the removal letter, or appeal the removal.” J.A. 19

– 20 ¶ k

. On Decem ber 5, 2012, Ms. Klees

- Wallace’s supervisor tentatively approved her “leave request for 1.5 hours of sick leave for a doctor’s appointment for her daughter on December 6, [ 2012 ] .” J.A. 9. Ms. Klees

- Wallace’s superv isor “advised [ her ] in writing on Decemb er 5, 2012 that she was required to bring in documentation of the doctor’s visit by December 7, 2012

, ” J.A. 9

, but she failed to pr ovide it on her return, J.A. 11. On December 28, 2012, Ms. Klees- Wallace’s tentative sick leave was re

- designated as AWOL. J.A. 11. On January 3, 2013, the FCC provided Ms. Klees

- Wallace with a removal letter. J.A. 33. The l etter stated, in part, that Ms. Klees

- Wallace’s absence onKLEES

- WALLACE v. FCC 4

December 6, 2012 , and subsequent failure to provide documentation, violated paragraph 2(c) of the LCA. J.A. 33. On May 16, 2013, the NTEU filed a grievance on b ehalf of Ms. Klees

- Wallace, pursuant to the procedures set forth in the NTEU’s Collective Bargaining Agreement with the FCC. See J.A. 23

– 26; see also J.A. 42

– 47 ( setting forth Article 3 8 of the BNA between NTEU and FCC

, which addresses the negotiated grievance procedure). The grievance was filed at Step 3 of the negotiated grie vance procedure, which allows for the appeal of the grie vance in writing to the Chairman of the FCC. J.A. 10; see also J.A. 44 (discussing Step 3 of the negotiated grievance procedure). On August 19, 2013, a Step 3 d eciding o fficial dete rmined Ms. Klees

- Wallace’s December 6, 2012 sick leave was “not subject to the LCA’s medical documentation requirement at [paragraph] 2(c) of that agreement; ho wever, the records show that her supervisor advised her that approval of the requested leave was contingent on her submitting medical documentation, which she failed to do. ” J.A. 31. T he d eciding o fficial also determined the “LCA at [paragraph] 2(d) required [Ms. Klees

- Wallace] to comply with the eligibility and documentation requir ements found in Articles 27

– 30 of the BNA. Under Article 28, Section 1(E) of the BNA, a supervisor may require documentation to substantiate s ick leave requests.” J.A. 31. Ms. Klees

- Wallace’s supervisor advised her in writing that medical documentation was required for final a pproval of her sick leave. Further, the d eciding o fficial determined Ms. Klees

- Wallace’s supervisor “consistently
requ ired medical documentation for all of [Ms. Klees

Wallace’s] sick leave requests, and that initially she provided these documents when she requested leave to

c are for her daughter.” J.A. 31 (footnote omitted). The d eciding o fficial sustained the removal b ased upon par agraph 2(d) of the LCA. J.A. 31; see J.A. 12.KLEES

- WALLACE v. FCC 5

The matter proceeded to arbitration, where the pa rties “ agreed on one issue, that is, whether the LCA had been breached.” J.A. 8. On November 10, 201 4 , the arbitrator issued a n Opinion and Interim Award. The Arbitrator determined Ms. Klees

- Wallace was “deprived of her right to show before the Agency decision maker that the provisions of [paragraph] 2(d) of the LCA were not violated by her conduct, a showing that may have caused the Agency to reach a different conclusion.” J.A. 13. The Arbitrator remanded the matter to the FCC for further proceedings, retain ing jurisdiction to hear any appeal of the remanded grievance proceeding. Dissatisfied that the Arbitrator had “giv[en] the [FCC] another chance to fire [her] for an entirely new reason,” Pet’r’s Br. 1, Ms. Klees

- Wallace appealed the Arbitrator’s Opinion and Interim Award to this court.

D ISCUSSION On appeal, Ms. Klees

- Wallace makes several arg uments related to the merits of the A rbitrator’s determin ation. See generally id. at 13

– 19. She disregards the interim nature of the Arbitrator’s decision and contends that , because this decision “finally and completely r esolved the issue of whether the [FCC] had properly r emoved [her] for the reason stated in the removal letter, the decision is final and jurisdiction properly lies with this [c]ourt.” Id. at 6. We find this court does not have juri sdiction to review the Arbitrator’s non

- final determination.

This Court Lacks Jurisdicti on to Hear Mr. Klees

Wallace’s Appeal from the Arbitrator’s Interim Decision This court has “inherent jurisdiction to determine the scope of our jurisdiction,” which is “a pure question of law.” Haines v. M erit S ys. P rot. B d. , 44 F.3d 998, 999 (Fed. Cir. 1995) (citations omitted) . “One constraint on this court’s jurisdiction is the so

- called final judgment rule, [which] ordinarily limits our jurisdiction to appeals from a decision or order that ends the litigation on theKLEES

- WALLACE v. FCC 6

merits and leaves nothing for the court to do but execute the judgment.” Weed v. Soc. Sec. Admin. , 571 F.3d 1359, 1361 (Fed. Cir. 2009) (alteration in original) (internal quotation marks and citations omitted); see also Cabot Corp. v. United States , 788 F.2d 1539, 1542 (Fed. Cir. 1986) (discussing several interests underlying the final judgment rule ). “Congress made arbitral decisions subject to judicial review in the same manner and under the same cond itions as if the matter had been decided by the [Merit Syste ms Protection] Board [(“MSPB”)]

. . . .” Cornelius v. Nutt , 472 U.S. 648, 661 n.16 (1985) (internal quotation marks and citation omitted). “We have held that the final judgment rule applies to appeals from the [MSPB].” Weed , 571 F.3d at 136 1 . Under the final judgment rule, we may review only “ a final order or final decision of the [ MSPB] .” Haines , 44 F.3d at 999 (internal quotation marks and citation omitted) ; see 28 U.S.C. § 1295(a)(9) (2012) (“The United States Court of Appeals for the F ederal Circuit shall have exclusive jurisdiction

. . . of an appeal from a final order or final decision of the [MSPB]

, pursuant to sections 7703(b)(1) and 7703(d) of title 5 .”). We find the Arbitrator’s Opinion and Interim Award was not a final order or decision. The Arbitrator did not reach the ultimate question of whether Ms. Klees

- Wallace breached the LCA. See J.A. 17 . Rather, the Arbitrator remanded the matter to the FCC to provide Ms. Klees

Wallace with an opportunity to prove “the provisions of [paragraph] 2(d) of the LCA were not violated by her conduct

. . . .” J.A. 13

. “[A] n order remanding a matter to an administrative agency for further findings and pr oceedings is not final. ” Cabot Corp.

, 788 F.2d at 1542 (citations omitted)

. C ONCLUSION We conclude the Arbitrator’s decision on appeal is not a “final order or final decision” for purposes of 28 U.S.C.KLEES

- WALLACE v. FCC 7

§ 1295(a)(9). Accordingly, this court lacks jurisdiction and Ms. Klees

- Wallace’s appeal is

DISMISSED