Ruby v. Secretary of United States Navy, 20473.

Citation365 F.2d 385
Decision Date02 June 1966
Docket NumberNo. 20473.,20473.
PartiesDonovan Edward RUBY, Appellant, v. SECRETARY OF the UNITED STATES NAVY, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Donovan E. Ruby, in pro. per.

Cecil F. Poole, U. S. Atty., San Francisco, Cal., for appellee.

Before CHAMBERS, BARNES, HAMLEY, JERTBERG, MERRILL, KOELSCH, BROWNING, DUNIWAY and ELY, Circuit Judges.1

HAMLEY, Circuit Judge:

Donovan Edward Ruby commenced this action against the Secretary of the United States Navy to obtain an adjudication that Ruby is entitled to "* * * a legal, lawful and proper discharge or separation and or retirement * * *" from the United States Navy. Pursuant to Rule 12(b), Federal Rules of Civil Procedure, defendant moved to dismiss the complaint. This motion was granted by the district court on June 17, 1965 on the ground that the matter in dispute is res judicata. On July 8, 1965, Ruby moved to vacate and set aside this order, which motion was denied on the day it was filed. On July 14, 1965, Ruby appealed from the order of dismissal entered on June 17, 1965. On August 3, 1965, the district court entered an order dismissing the action. No appeal was taken from the latter order.

The United States has moved to dismiss the appeal arguing: (1) the district court order of June 17, 1965, dismissed the complaint, but did not dismiss the action; (2) such an order is not a final decision within the meaning of 28 U.S.C. § 1291 (1964) and is therefore not appealable; and (3) the notice of appeal filed on July 14, 1965, is directed to this non-appealable order, and no appeal has been taken from the order of August 3, 1965, dismissing the action.

An order which dismisses a complaint without expressly dismissing the action is not, except under special circumstances, an appealable order. Richardson v. United States, 9 Cir., 336 F.2d 265, 266; Marshall v. Sawyer, 9 Cir., 301 F.2d 639, 643; Javor v. Brown, 9 Cir., 295 F.2d 60, 61. The special circumstances which will permit this court to regard such an order as final and appealable must be such as to make it clear that the court determined that the action could not be saved by any amendment of the complaint which the plaintiff could reasonably be expected to make, thereby entitling plaintiff to assume that he had no choice but to stand on his complaint. Marshall v. Sawyer, 301 F.2d at 643; Gardner v. J. J. Newberry Co., Inc., 9 Cir., 239 F.2d 178.

Examination of the record indicates that such special circumstances do not exist in this case. In granting the motion to dismiss the complaint on the ground that the matter in dispute is res judicata, the district court stated:

"The fact that an administrative official of the government has written a possibly ambiguous letter does not revive plaintiff\'s claim since there is no allegation in the complaint that the official either had the authority or intended to waive the statute of limitations."

This statement indicates to us that plaintiff could possibly have saved his cause of action by amending his complaint.

It follows that, regarding the notice of appeal as being taken from the non-appealable order of June 17, 1965, the appeal must be dismissed. However, the question remains whether that notice of appeal may also be regarded as being taken from the subsequently-filed final order of August 3, 1965, dismissing the action.

A similar question was answered in the affirmative in Firchau v. Diamond National Corp., 9 Cir., 345 F.2d 269. In that case the district court, on June 25, 1964, dismissed the first amended complaint. On July 21, 1964, plaintiff appealed from that order. On July 24, 1964, the district court dismissed the action. No further notice of appeal was filed. This court denied defendant's motion to dismiss the appeal, holding that the notice of appeal would be regarded as directed to the final judgment of dismissal, "* * * overlooking as a technical defect not affecting substantial rights, the premature filing of that notice."

In Firchau, the court assumed, without discussion, that since the notice of apwas ineffectual when filed, because taken from a non-appealable order, it did not divest the district court of jurisdiction to enter a final order dismissing the action. In two earlier decisions by this court, it was held in one that, under such circumstances the district court had been divested of jurisdiction to enter a further order on the merits, and in the other, that the district court had such jurisdiction.

The earlier of the two cases is Merritt-Chapman & Scott Corp. v. City of Seattle, 9 Cir., 281 F.2d 896. In that case the district court, on December 30, 1959, entered an order dismissing the complaint. On January 6, 1960, a notice of appeal from that order was filed. On January 28, 1960, the district court entered an order dismissing the action. On the same day the plaintiff filed a notice of appeal from the order of December 30, 1959, and also from the order of January 28, 1960.

This court granted defendant's motion to dismiss the appeal in its entirety, holding, in effect, that: (1) the order of December 30, 1959, was not appealable, (2) the notice of appeal filed on January 6, 1960, directed against that non-appealable order, deprived the district court of jurisdiction to enter the subsequent order dismissing the action, and (3) by reason thereof, it was also necessary to dismiss the appeal taken from the latter order. In charting this course of action the court, in Merritt-Chapman, did not discuss the possibility that an appeal from a non-appealable order ought to be viewed in a different light than an appeal from an appealable order, in determining whether the district court has been deprived of jurisdiction.

In the later ...

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