John Breda v. Merit Systems Protection Board

N OTE: This order is nonprecedential.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 D YK, BRYSON, and T ARANTO, Circuit Judges.
P ER CURIAM .
O R D E R
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: 1 Filed: 01/26/2024

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BREDA v. MSPB 2
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,
I T I S O RDERED T HAT :
(1) The petition for review is dismissed.
(2) Each party shall bear its own costs.
January 26, 2024
Date
F OR THE COURT
Case: 23-2166 Document: 15 Page: 2 Filed: 01/26/2024

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