Breda v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: January 26, 2024
• Docket: 23-2166
• Status: Unpublished

Opinion

Case: 23-2166 Document: 15 Page: 1 Filed: 01/26/2024

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

JOHN BREDA, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2023-2166 ______________________

Petition for review of the Merit Systems Protection Board in No. PH-1221-23-0138-W-1. ______________________

Before DYK, BRYSON, and TARANTO, Circuit Judges. PER CURIAM. ORDER In response to this court’s November 7, 2023, order di- recting the parties to show cause whether John Breda’s pe- tition for review should be dismissed for lack of jurisdiction, the Merit Systems Protection Board urges dis- missal, which Dr. Breda opposes. On April 19, 2023, the administrative judge granted- in-part Dr. Breda’s motion to dismiss without prejudice subject to refiling “on the motion of the administrative judge by July 18, 2023,” and ordered that “[u]pon refiling, Case: 23-2166 Document: 15 Page: 2 Filed: 01/26/2024

this matter will immediately be set for a new hearing” as discovery was closed. ECF No. 2 at 10. Dr. Breda then filed a petition for review with this court. His Board appeal has since been reopened, and the Board notes without con- tradiction that no final decision has yet been entered. In general, this court only has jurisdiction over “an ap- peal from a final order or final decision of the” Board. 28 U.S.C. § 1295(a)(9); see 5 U.S.C. § 7703(a)(1). “The Su- preme Court has consistently held that as a general rule an order is final only when it ends litigation on the merits and leaves nothing for the court to do but execute the judg- ment.” Weed v. Social Sec. Admin., 571 F.3d 1359, 1361 (Fed. Cir. 2009) (cleaned up). “Whether an order is final does not depend on the specific ‘form of words’ that it uses but instead on whether the order evinces the [tribunal’s] clear intent to end the case.” PlasmaCAM, Inc. v. CNCElectronics, LLC, 24 F.4th 1378, 1383 (Fed. Cir. 2022) (citation omitted). Here, the April 2023 order Dr. Breda seeks to appeal clearly evinced the opposite intent—i.e., the Board was not finished with Dr. Breda’s appeal. Indeed, consistent with the order, Dr. Breda’s appeal has been reo- pened and is currently pending before the administrative judge. Accordingly, IT IS ORDERED THAT: (1) The petition for review is dismissed. (2) Each party shall bear its own costs. FOR THE COURT

January 26, 2024 Date