Technology for Communications International, Plaintiff-appellee, v. the United States, Defendant-appellee, v. Andrew-thomson Broadcasting, Inc., Appellant, 914 F.2d 270 (Fed. Cir. 1990)

Technology for Communications International (Technology) moves to dismiss the appeal of Andrew-Thomson Broadcasting Inc. (ATBI). ATBI opposes the motion. The United States has not filed a response.

This is a pre-award contract dispute that began when both parties submitted bids in response to a solicitation by the United States Information Agency. Technology's bid was the lowest and ATBI's bid was the next lowest.

The contracting officer thereafter determined that Technology was not a "responsible" bidder on several grounds. Because Technology is a small business, the contracting officer referred his determination of nonresponsibility to the Small Business Administration (SBA) for review. The SBA regional office disagreed with the contracting officer and recommended that a certificate of competency be issued. However, the central SBA office supported the contracting officer's nonresponsibility determination.

On December 21, 1989, Technology filed a complaint in the Claims Court relating to the SBA determination. ATBI does not dispute that it was aware of the suit from the outset. On March 23, 1990, the Claims Court concluded that the SBA's determination lacked a rational basis, ordered a fresh responsibility determination, and stayed an award on the procurement until after the agency proceedings were completed.

Two weeks later, ATBI moved to intervene in the Claims Court proceeding. On May 21, 1990, the Claims Court (1) denied as untimely ATBI's motion to intervene in the proceedings culminating in the March 23 remand order and (2) suspended proceedings on ATBI's motion to intervene in any future proceedings and directed that ATBI be given 48 hours advance warning prior to any award.

ATBI appealed from the "March 23, 1990 [order] declaring the contracting officer's and the Small Business Administration's responsibility determinations invalid and of no effect" and from the "May 21, 1990 [order] which declares ATBI's motion to be untimely but suspends further consideration of the motion until after the March 23, 1990 order is executed."

There are several interwined issues presented in the context of Technology's motion: (1) is the Claims Court's March 23 order appealable, (2) is the Claims Court's May 21 order appealable, and if so, (3) what is the proper disposition of the appeal.

The March 23 remand order is not appealable.^*  It is axiomatic that an order or decision is appealable when it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233 (1945). Here, the Claims Court stayed the proceedings; it did not end the litigation on the merits. In Cabot v. United States, 788 F.2d 1539 (Fed. Cir. 1986), this court determined that an order remanding a matter to an agency for further proceedings is not final for purposes of the final judgment rule.

ATBI argues that the order is sufficiently injunctive in nature to be appealable pursuant to 28 U.S.C. § 1292(a) (1), (c) (1). Assuming for the sake of argument that the order has the practical effect of an injunction, then ATBI must still show that it will suffer serious, perhaps irreparable, consequences. Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981).

Here, ATBI argues that the order delays its commencement of the project and erodes available profits. However, a contract has yet to be awarded. The government is still in the process of determining whether Technology is a responsible bidder. Under these circumstances, we do not deem ATBI's putative financial loss to satisfy the Carson "serious, perhaps irreparable" standard. Accordingly, the Claims Court's March 23 order is not reviewable at this time.

The May 21 order denied as untimely ATBI's motion to intervene in the proceedings culminating in the remand. Such an order denying intervention is appealable. Stringfellow v. Concerned Neighbors In Action, 480 U.S. 370, 377 (1987). See also Marino v. Ortiz, 484 U.S. 301, 304 (1988); 3B Moores' Federal Practice p 24.15.

Claims Court R. 24, like its counterpart, Fed. R. Civ. P. 24, requires that an application for intervention be timely. Here, ATBI was aware of the suit from its inception, but did not move to intervene until two weeks after the remand order. Moreover, when the case resumes at the Claims Court, ATBI's motion to intervene will be considered anew.

Timeliness is a matter within the sound discretion of the trial court, whether intervention is allowed or denied. 3B Moore's Federal Practice p 24.13. The trial court's decision is subject to reversal only where discretion has been abused. Id.

What was sought here was analogous to a post-judgment motion to intervene which is disfavored and rarely granted. See United States v. Yonkers Bd. of Ed., 801 F.2d 593 (2d Cir. 1986). ATBI does not deny that it knew of the action from its inception. Further, in view of the Claims Court's ruling permitting ATBI to renew its motion to intervene, ATBI has not shown that it is prejudiced or that it is unable to protect its interests.

Because this court indicated in its May 22, 1990 order, Misc. No. 285, that the issues on appeal could be considered in the context of an appropriate motion and because the Claims Court's denial of ATBI's motion to intervene was so clearly not an abuse of discretion, this court, sua sponte, summarily affirms the Claims Court's May 21 order.

Accordingly,

IT IS ORDERED THAT:

(1) Technology's motion to dismiss ATBI's appeal of the Claims Court's March 23, 1990 order is granted.

(2) The Claims Court's May 21, 1990 order is summarily affirmed.