365 F.2d 385 (9th Cir. 1966), 20473, Ruby v. Secretary of United States Navy

Docket Nº:20473.
Citation:365 F.2d 385
Party Name:Donovan Edward RUBY, Appellant, v. SECRETARY OF the UNITED STATES NAVY, Appellee.
Case Date:June 02, 1966
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 385

365 F.2d 385 (9th Cir. 1966)

Donovan Edward RUBY, Appellant,

v.

SECRETARY OF the UNITED STATES NAVY, Appellee.

No. 20473.

United States Court of Appeals, Ninth Circuit.

June 2, 1966

Page 386

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

Page 387

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.

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