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

______________________ 

 ALLISON GILES, National Treasury Employees Union, 

Washington, DC, argued for petitioner. Also represented 

by GREGORY O’DUDEN, LARRY JOSEPH ADKINS. 

 ALLISON KIDD-MILLER, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, argued for respondent. Also represented 

by ALEXIS J. ECHOLS, BENJAMIN C. MIZER, ROBERT E.

KIRSCHMAN, JR., FRANKLIN E. WHITE, JR. 

______________________ 

Before DYK, BRYSON, and WALLACH, Circuit Judges.

WALLACH, Circuit Judge.
2 KLEES-WALLACE v. FCC

Petitioner Louise Klees-Wallace appeals the arbitration Opinion and Interim Award of Mary Bass (“Arbitrator”), who determined Ms. Klees-Wallace was deprived of 

certain procedural rights during her removal from employment and remanded the matter for a new determination 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 the appeal of that interim decision for lack of 

jurisdiction. 

BACKGROUND

Ms. Klees-Wallace was employed as an AttorneyAdvisor in the International Bureau of the Federal Communications Commission (“FCC”). In May 2011, the FCC 

proposed removing 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-Wallace to return to work with the FCC pursuant to 

certain conditions. See J.A. 18–22 (LCA). 

Among the conditions of the LCA were procedures by 

which Ms. Klees-Wallace was required to request leave. 

In the relevant parts, 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 emergencies as determined by her supervisor, in accordance with paragraph nos. 2(e) and 2(f) herein;

(c) to provide her supervisor upon request 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 absences related to her medical condition. The medical documentation must be received by her 

supervisor within five days after her return to du-
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 documentation requirements found in Articles 27, 28, 

29, and 30 of the Basic Negotiated Agreement 

[(“BNA”)] between the FCC and National Treasury Employees Union [(“NTEU”)] (or the appropriate articles in a successor BNA), in order to use 

any types of leave specified in those articles that 

have not been individually addressed in this 

Agreement. Failure to meet the stated eligibility 

and/or documentation requirements outlined in 

those BNA articles may result in the absence being designated as AWOL; 

J.A. 18. The LCA further dictated that if Ms. KleesWallace was “AWOL for one hour or more on any occasion” 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-Wallace’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 opportunity to respond to the removal letter, or appeal the 

removal.” J.A. 19–20 ¶ k. 

On December 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 supervisor “advised [her] in writing on December 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 provide 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 

letter stated, in part, that Ms. Klees-Wallace’s absence on 
4 KLEES-WALLACE v. FCC

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 behalf 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 38 of the BNA between NTEU and FCC, 

which addresses the negotiated grievance procedure). 

The grievance was filed at Step 3 of the negotiated grievance procedure, which allows for the appeal of the grievance 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 deciding official determined 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; however, 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. The deciding official also determined the 

“LCA at [paragraph] 2(d) required [Ms. Klees-Wallace] to 

comply with the eligibility and documentation requirements found in Articles 27–30 of the BNA. Under Article 

28, Section 1(E) of the BNA, a supervisor may require 

documentation to substantiate sick leave requests.” J.A. 

31. Ms. Klees-Wallace’s supervisor advised her in writing 

that medical documentation was required for final approval of her sick leave. Further, the deciding official 

determined Ms. Klees-Wallace’s supervisor “consistently 

required medical documentation for all of [Ms. KleesWallace’s] sick leave requests, and that initially she 

provided these documents when she requested leave to 

care for her daughter.” J.A. 31 (footnote omitted). The 

deciding official sustained the removal based upon paragraph 2(d) of the LCA. J.A. 31; see J.A. 12. 
KLEES-WALLACE v. FCC 5

The matter proceeded to arbitration, where the parties “agreed on one issue, that is, whether the LCA had 

been breached.” J.A. 8. On November 10, 2014, the 

arbitrator issued an 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, retaining 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. 

DISCUSSION

On appeal, Ms. Klees-Wallace makes several arguments related to the merits of the Arbitrator’s determination. 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 resolved the issue of whether the [FCC] had properly removed [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 jurisdiction to review the Arbitrator’s non-final determination. 

This Court Lacks Jurisdiction to Hear Mr. KleesWallace’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. Merit Sys. Prot. Bd., 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 the 
6 KLEES-WALLACE v. FCC

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 conditions as if the matter had been decided by the [Merit 

Systems 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 1361. 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 

Federal 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. KleesWallace 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 proceedings is not final.” Cabot Corp., 788 F.2d at 1542 

(citations omitted). 

CONCLUSION

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