Ruby v. Secretary of United States Navy, No. 20473.

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

365 F.2d 385 (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.


365 F.2d 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

365 F.2d 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.

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...

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207 practice notes
  • Local P-171, Amalgamated Meat Cutters and Butcher Workmen of North America v. Thompson Farms Co., P-171
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 26, 1981
    ...the court of appeals, then such jurisdiction must remain in the district court; it cannot float in the air. Ruby v. Secretary of the Navy, 365 F.2d 385, 388 (9 Cir. 1966) (en banc), cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967). This logic has led most courts of appeals ......
  • Richerson v. Jones, No. 76-1762
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 7, 1977
    ...1968); Curtis Gallery & Library, Inc. v. United States, 388 F.2d 358 (9th Cir. 1967); Ruby v. Secretary of United Page 923 States Navy, 365 F.2d 385 (9th Cir. 1966); Firchau v. Diamond National Corp., 345 F.2d 269 (9th Cir. 1965); 9 J. Moore, Federal Practice P 204.14 at 982. 6a Here, Riche......
  • Martinez v. Barr, No. 17-72186
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 30, 2019
    ...the lower court of its jurisdiction to issue a subsequent final and appealable judgment. See Ruby v. Secretary of United States Navy , 365 F.2d 385, 389 (9th Cir. 1966) ; Resnik v. La Paz Guest Ranch , 289 F.2d 814, 818 (9th Cir. 1961). In allowing premature appeals to ripen, we use "a prag......
  • Scott v. Eversole Mortuary, No. 73-2765
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 8, 1975
    ...1968) (citation omitted). Accord, Lanning v. Serwold, 474 F.2d 716, 717 n.1 (9th Cir. 1973); Ruby v. Secretary of the United States Navy, 365 F.2d 385, 387 (9th Cir. 1966) (en banc), Cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967). Because the district judge did not allow ......
  • Request a trial to view additional results
207 cases
  • U.S. v. Rumpf, Nos. 76-1891
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 8, 1978
    ...could temporarily deprive a court of jurisdiction at any and every critical juncture." In Ruby v. Secretary of United States Navy, 9 Cir., 365 F.2d 385, cert. denied 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442, the Ninth Circuit considered the problem in an en banc session. It held, Ibid. ......
  • Martinez v. Barr, No. 17-72186
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 30, 2019
    ...the lower court of its jurisdiction to issue a subsequent final and appealable judgment. See Ruby v. Secretary of United States Navy , 365 F.2d 385, 389 (9th Cir. 1966) ; Resnik v. La Paz Guest Ranch , 289 F.2d 814, 818 (9th Cir. 1961). In allowing premature appeals to ripen, we use "a prag......
  • Local P-171, Amalgamated Meat Cutters and Butcher Workmen of North America v. Thompson Farms Co., P-171
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 26, 1981
    ...the court of appeals, then such jurisdiction must remain in the district court; it cannot float in the air. Ruby v. Secretary of the Navy, 365 F.2d 385, 388 (9 Cir. 1966) (en banc), cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967). This logic has led most courts of appeals ......
  • Richerson v. Jones, No. 76-1762
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 7, 1977
    ...1968); Curtis Gallery & Library, Inc. v. United States, 388 F.2d 358 (9th Cir. 1967); Ruby v. Secretary of United Page 923 States Navy, 365 F.2d 385 (9th Cir. 1966); Firchau v. Diamond National Corp., 345 F.2d 269 (9th Cir. 1965); 9 J. Moore, Federal Practice P 204.14 at 982. 6a Here, Riche......
  • Request a trial to view additional results

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