Klees-Wallace v. Federal Communications Commission , 815 F.3d 805 ( 2016 )

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 arbitra-
tion Opinion and Interim Award of Mary Bass (“Arbitra-
tor”), who determined Ms. Klees-Wallace was deprived of
certain procedural rights during her removal from em-
ployment and remanded the matter for a new determina-
tion 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 Attorney-
Advisor in the International Bureau of the Federal Com-
munications 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 emer-
gencies as determined by her supervisor, in ac-
cordance 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 ab-
sences related to her medical condition. The med-
ical 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 docu-
mentation requirements found in Articles 27, 28,
29, and 30 of the Basic Negotiated Agreement
[(“BNA”)] between the FCC and National Treas-
ury Employees Union [(“NTEU”)] (or the appro-
priate 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 be-
ing designated as AWOL;
J.A. 18. The LCA further dictated that if Ms. Klees-
Wallace was “AWOL for one hour or more on any occa-
sion” 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 oppor-
tunity 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 supervi-
sor “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 pro-
vide 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 be-
half 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 griev-
ance procedure, which allows for the appeal of the griev-
ance 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 deter-
mined 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; how-
ever, 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 require-
ments 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 ap-
proval of her sick leave. Further, the deciding official
determined Ms. Klees-Wallace’s supervisor “consistently
required medical documentation for all of [Ms. Klees-
Wallace’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 para-
graph 2(d) of the LCA. J.A. 31; see J.A. 12.
KLEES-WALLACE v. FCC 5
The matter proceeded to arbitration, where the par-
ties “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. Dissatis-
fied 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 argu-
ments related to the merits of the Arbitrator’s determina-
tion. 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 re-
solved the issue of whether the [FCC] had properly re-
moved [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 juris-
diction to review the Arbitrator’s non-final determination.
This Court Lacks Jurisdiction 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. 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 condi-
tions 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. 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 pro-
ceedings 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