NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
STEPHEN STRAUSBAUGH,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2010-3104
__________________________
Petition for review of the Merit Systems Protection
Board in AT315H090034-B-1.
__________________________
Decided: October 7, 2010
__________________________
STEPHEN STRAUSBAUGH, of Carriere, Mississippi, pro
se.
MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With him on the brief
were JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
__________________________
STRAUSBAUGH v. MSPB 2
Before GAJARSA, LINN, and PROST, Circuit Judges.
PER CURIAM.
Stephen Strausbaugh (“Strausbaugh”) appeals a final
decision of the Merit Systems Protection Board (“Board”)
dismissing his appeals without prejudice and denying his
motions for recusal of the administrative judge (“AJ”).
Strausbaugh v. Gov’t Printing Office, AT-315H-09-0034-B-
1 (M.S.P.B. Aug. 27, 2009) (initial decision); Strausbaugh
v. Gov’t Printing Office, AT-4324-09-0264-I-2 (M.S.P.B.
Aug. 27, 2009) (initial decision) (both initial decisions
collectively “Initial Decisions”); Strausbaugh v. Gov’t
Printing Office, {AT-315H-09-0034-B-1, AT-4324-09-0264-
I-2} (M.S.P.B. Jan. 14, 2010) (final order denying petition
for review) (“Board Decision”). Strausbaugh timely ap-
pealed. Because the Board’s decision was not final, this
court lacks jurisdiction and dismisses Strausbaugh’s
appeal.
BACKGROUND
On September 28, 2008, the Government Printing Of-
fice (“GPO”) removed Strausbaugh from the position of
Electrician. Strausbaugh appealed his removal to the
Board on October 10, 2008, alleging that the termination
was based upon marital status discrimination and viola-
tions of the Uniformed Services Employment and Reem-
ployment Act of 1984 (“USERRA”). On January 27, 2009,
the AJ dismissed for lack of jurisdiction the portion of the
appeal alleging marital status discrimination and dock-
eted a new appeal for the USERRA claims. Strausbaugh
v. Gov’t Printing Office, AT-315H-09-0034-I-1 (M.S.P.B.
Jan. 27, 2009). Strausbaugh petitioned for review of the
dismissal. The Board found that Strausbaugh had made
a non-frivolous allegation that his termination was based
on his marital status and issued an order vacating the
initial decision and remanding the appeal for further
3 STRAUSBAUGH v. MSPB
adjudication. Strausbaugh v. Gov’t Printing Office, AT-
315H-09-0034-I-1 (M.S.P.B. May 27, 2009).
Strausbaugh thus had two pending appeals with the
Board: one claiming his termination was based upon
marital status discrimination and another claiming his
termination was based on USERRA violations. In Au-
gust, 2009, Strausbaugh made motions to dismiss both
cases without prejudice on the ground that he was to
begin active military duty in Iraq that was expected to
last at least six months, beginning August 22, 2009.
Strausbaugh’s motions requested, in the alternative,
that the AJ recuse himself based on perceived bias.
Strausbaugh asserted that because the AJ initially dis-
missed the appeal based on the allegation of marital
status discrimination, he had already determined the
outcome of the appeal prior to actually holding a hearing
on the merits. In addition, Strausbaugh argued that the
AJ demonstrated bias during a conference call held in
August of 2009 by: (1) improperly refusing to include
Strausbaugh’s attorney in the call even though Straus-
baugh himself was included; (2) stating that he (the AJ)
had previously served as an agency counsel for eight
years; and (3) acting “buddy buddy” towards the agency
attorney.
The AJ dismissed both appeals without prejudice, de-
nying in a footnote in each Initial Decision the requests
for recusal. The AJ also gave Strausbaugh the following
instructions on refiling:
To refile this appeal, the appellant must submit a
written request for such a refilling to the under-
signed 30 calendar days from the date the appel-
lant is released from active duty but, in any event,
no later than August 27, 2010.
STRAUSBAUGH v. MSPB 4
Initial Decisions at 2. 1 In one motion, Strausbaugh
petitioned the Board for review of the AJ’s decision not to
recuse himself in either appeal. The Board, in a single
opinion, adopted both of the AJ’s Initial Decisions, con-
cluding that there was no new, previously unavailable
evidence and that the AJ made no error in law or regula-
tion that affected the outcome. Board Decision at 1. In
his informal brief to this court, Strausbaugh does not
challenge the dismissals without prejudice, but reiterates
the arguments he made to the Board in his petition for
review of the denial of his motion to recuse the AJ.
DISCUSSION
In responding to Strausbaugh’s informal brief, the
government questions whether the AJ’s decisions on
Strausbaugh’s motions to recuse are properly before this
court. “This court has the duty to determine its jurisdic-
tion and to satisfy itself that an appeal is properly before
it.” Woodard v. Sage Prods., Inc., 818 F.2d 841, 844 (Fed.
Cir. 1987) (en banc). Strausbaugh’s motions requested
recusal only in the event that the AJ did not dismiss his
appeals without prejudice. However, the recusal motions
were before the AJ at the same time as the motions to
dismiss without prejudice, and although styled as alterna-
tive motions, could have had at least some relevance even
on the grant of the dismissal motions. Although dismiss-
als without prejudice are not governed by specific Board
regulations, the normal practice of the Board on granting
such a dismissal is to require refiling with the AJ origi-
nally assigned to the case. Peter B. Broida, A Guide to
Merit Systems Protection Board Law & Practice 643 (26th
1 We note that the AJ set a deadline for refilling
which has now passed. The timing or propriety of the
refilling of these appeals is not before this court and is not
addressed in this opinion.
5 STRAUSBAUGH v. MSPB
ed. 2009). Thus, the disposition of the recusal motions
seemingly was relevant at least to the extent necessary
for the AJ to determine the proper instructions for
Strausbaugh on refiling. But without deciding the issue,
even if the AJ properly exercised discretion in deciding
the recusal motions at the same time as the case was
dismissed without prejudice, the question remains as to
what extent this court has jurisdiction over the recusal
issue presented in Strausbaugh’s appeal.
It is well-settled that this court does not have jurisdic-
tion over non-final rulings of the Merit Systems Protec-
tion Board. See Weed v. Soc. Sec. Admin., 571 F.3d 1359,
1361 (Fed. Cir. 2009) (“We have held that the final judg-
ment rule applies to appeals from the Merit Systems
Protection Board.”); 28 U.S.C. § 1295(a)(9) (stating that
this court has exclusive jurisdiction over “an appeal from
a final order or final decision of the Merit Systems Protec-
tion Board”). Here, the AJ’s rulings on Strausbaugh’s
motions to dismiss without prejudice are not final, ap-
pealable orders because they leave Strausbaugh the
option of refiling his claims. See, e.g., Taylor-Holmes v.
Office of Cook Cnty. Pub. Guardian, 503 F.3d 607, 609
(7th Cir. 2007); Borelli v. City of Reading, 532 F.2d 950,
951-52 (3d Cir. 1976); Wright, Miller & Cooper, Federal
Practice and Procedure § 2367 (“The general rule is that a
dismissal without prejudice is neither final nor appeal-
able.”). The denials of his motions for recusal also are not
appealable final orders. See, e.g., Liddell v. Bd. of Educ.
of City of St. Louis, 677 F.2d 626, 643 (8th Cir. 1982);
United States v. Washington, 573 F.2d 1121, 1122 (9th
Cir. 1978); Wright, Miller & Cooper, Federal Practice and
Procedure § 3914.22 (“The rule is well settled that denial
of a motion to disqualify the trial judge is not final.”).
Therefore, this court is without jurisdiction to address
Strausbaugh’s challenge to the denial of his motions to
STRAUSBAUGH v. MSPB 6
recuse the AJ. For this reason, this court dismisses
Strausbaugh’s appeal. The dismissal of this appeal,
however, should not be interpreted to foreclose Straus-
baugh’s challenge to the denial of his motions to recuse
should his appeals to the Board be refiled at some future
date.
For the foregoing reasons, this court dismisses the
appeal for lack of jurisdiction.
DISMISSED
COSTS
Each party shall bear its own costs.