OpenJurist

36 F3d 1114 Wildberger v. Small Business Administration

36 F.3d 1114

Robert W. WILDBERGER, Jr., Petitioner,
v.
SMALL BUSINESS ADMINISTRATION, Respondent.

No. 94-3500.

United States Court of Appeals, Federal Circuit.

Aug. 30, 1994.

NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Before PLAGER, LOURIE, and RADER, Circuit Judges.

LOURIE, Circuit Judge.

ORDER

1

The Clerk of the Merit Systems Protection Board sent a letter to this court (1) informing the court that Robert W. Wildberger, Jr.'s case had been remanded to the administrative judge (AJ) for further proceedings and (2) asking whether the Board should still file the certified list. Wildberger responds that he wishes his case to go forward. We, sua sponte, consider whether Wildberger's petition for review should be dismissed.

2

The Small Business Administration (SBA) removed Wildberger based on numerous charges. Wildberger appealed to the Board. The AJ sustained the agency's removal based on the written record after denying Wildberger's requests for a continuance. The Board determined that the AJ abused her discretion in failing to grant the continuances, failing to permit Wildberger to file documents, and failing to have a hearing on the merits. The Board denied Wildberger's motion to disqualify the AJ because of bias and incompetence. The Board remanded the case to the AJ for further proceedings.

3

Wildberger petitioned this court for review and states here that the Board's decision "raises serious due process, fairness, and constitutional issues that are final with respect to the Board's Opinion and Order in this case." We disagree. There has been no final adjudication in this case and the Board's remand order is not one that is presently reviewable pursuant to 5 U.S.C. Sec. 7703(b)(1). Section 7703(b)(1) provides that a petitioner may seek review of "a final order or final decision of the Board" in this court. In Cabot v. United States, 788 F.2d 1539, 1542-43 (Fed.Cir.1986), we stated that an order remanding a matter to an administrative agency for further findings and proceedings is not a final appealable order. Here, the Board's order was neither final nor appealable. The merits have not been adjudicated and the Board's denial of Wildberger's disqualification motion is a nonappealable interlocutory order that may be reviewed on appeal only after issuance of a final decision.

4

Accordingly,

IT IS ORDERED THAT:

5

(1) We, sua sponte, dismiss Wildberger's petition for review.

6

(2) Each side shall bear its own costs.